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5 On the Estate of Dicaeogenes

5.hypothesisOn the death of Dicaeogenes (II.), who had no children but left four sisters behind him, Proxenus came forward and produced a will by which the deceased Dicaeogenes (II.) adopted his (Proxenus's) son Dicaeogenes (III.) and left him a third of his estate. After they had distributed the whole property on this basis, Dicaeogenes (III.), the son of Proxenus, eventually came and alleged that he had been adopted as heir to the whole property; he won his case and took possession, in addition to his own share, of the two-thirds which had been held by the sisters of the deceased. At a still later date the sons of the sisters brought a successful action against Dicaeogenes (III.), and he agreed to hand back to them the two-thirds clear and free of all charges, Leochares acting as surety for the performance of this promise. In the present suit, as Dicaeogenes (III.) and Leochares repudiate their agreement, the sons of the sisters claim the two-thirds from Dicaeogenes (III.), as having agreed to restore the property, and from Leochares as surety. The discussion turns on a question of fact; for the adversaries deny their engagement.

5.1We thought, gentlemen, that in the matter of our dispute with Dicaeogenes (III.) the agreement arrived at in court would be conclusive; for when Dicaeogenes (III.) gave up the two-thirds of the estate and furnished sureties that he would hand over that portion to us without dispute, we reciprocally abandoned our claims. But, gentlemen, since Dicaeogenes (III.) does not perform his agreement, we are bringing an action against Leochares, his surety, in accordance with our affidavit. note 5.2Please read the affidavit.Affidavit

That the facts which we stated in the affidavit are true, Cephisodotus here is well aware and we will now produce witnesses before you to prove, first, that Dicaeogenes (III.) gave up to us the two-thirds of the estate, and, secondly, that Leochares became his surety. Please read the deposition.Deposition

5.3You have heard what the witnesses say, and I do not believe that even Leochares himself would declare that their evidence has not been true. He will, however, perhaps have recourse to the argument that Dicaeogenes (III.) has performed all that he agreed to do and that he himself has fulfilled his duties as surety. If he says this, he will be lying and will easily be convicted of doing so; for the clerk shall read you the inventory of all the property which formed the estate left by Dicaeogenes (II.) the son of Menexenus, and of the property received by Dicaeogenes (III.).Inventory

5.4If they affirm that Dicaeogenes (II.), our uncle, did not possess this property when he was alive and did not bequeath it to us at his death, let them prove it; if they declare that he left it and that we have recovered it, let them produce a witness to support their statement. We are producing witnesses to prove that Dicaeogenes (III.) agreed to hand over to us the two-thirds of the property which the son of Menexenus left, and that Leochares acted as surety for his doing so; for this is the basis of our present action and the subject of our affidavit. Please read me the affidavit.Affidavit

5.5If then, gentlemen, these were the only points with which Leochares or Dicaeogenes (III.) were going to deal in their defence, what I have already said would suffice; but since they are prepared to treat of the question of the inheritance from the beginning, I should like you to hear the facts from my side also, that, knowing the truth instead of being misled, you may give an unbiased verdict.

Our grandfather, Menexenus (I.) had an only son, Dicaeogenes (II.), and four daughters, one of whom was married to my father, Polyaratus, another to Democles of Phrearrhi, the third to Cephisophon of Paeania, while the fourth was the wife of Theopompus, the father of Cephisodotus. 5.6Dicaeogenes, having sailed out as commander of the Paralus, note was killed in action at Cnidus. note He died without issue, and Proxenus, the father of Dicaeogenes (III.) here, produced a will, in reliance on which our fathers note distributed his estate. Under the will Dicaeogenes (III.) here was to be recognized as the adopted son of Dicaeogenes (II.), the son of Menexenus (I.) and our uncle, and heir to a third of his estate of the remainder an equal share was adjudicated to each of the daughters of Menexenus (I.). Of these facts I will produce before you as witnesses those who were present on that occasion.Witnesses

5.7When they had thus divided up the inheritance, having sworn not to transgress the terms agreed upon, each remained in possession of the share which he had received for twelve years. During all this period, though the courts sat, no one of them thought of claiming that there was any injustice in what had been done, until, when the city suffered misfortune and strife arose, note Dicaeogenes (III.) here, acting at the instigation of Melas the Egyptian, whose advice he followed in everything, claimed from us the whole estate, alleging that he had been adopted as sole heir by our uncle. 5.8We thought him mad in bringing the action; for we could never imagine that the same man could at one time state that he had been adopted as heir to one-third and at another time that he had been adopted as sole heir, and be believed by you to be speaking the truth. However, on coming into court, though we had by far the better case, we were cheated of our rights, not by the judges but by Melas the Egyptian and his friends, who thought that the misfortunes of the city gave them liberty to possess themselves of other people's property and to bear false witness in support of one another, and by their acting in this manner the judges were misled. 5.9Thus we, the victims of perjury, lost our property; for our father died not long after the case was tried and before he could prosecute those of the witnesses whom he had indicted. Dicaeogenes (III.), on obtaining against us the verdict which he desired, that very same day forcibly deprived of her share the daughter of Cephisophon of Paeania, the niece of Dicaeogenes (II.) who left the money; robbed the former wife of Democles of what Dicaeogenes (II.) had left her; and robbed the mother of Cephisodotus and Cephisodotus himself of all they possessed. 5.10For of these persons he was at the same time the guardian and legal representative and the legal adversary; yet they did not meet with the slightest degree of pity from him on account of their relationship, but, orphans and unprotected and penniless, they even lacked all the necessities of life. This is how Dicaeogenes here, their nearest kinsman, carried out his duties as their guardian; what their father Theopompus left them he handed over to their enemies, and what their maternal uncle and their grandfather gave them he himself appropriated before any judgement had been given. 5.11What was worst of all, while they were minors, he bought the house which they had inherited from their father and demolished it and used the site to make a garden adjoining his town-house. Also, though he was receiving an income of seventy minae from the property of our uncle Dicaeogenes (II.), he sent the latter's nephew Cephisodotus with his own brother Harmodius to Corinth note as a body servant; such was his insolence and rascality. Nay, he added insult to injury by reviling and upbraiding him for wearing heavy shoes and a coarse cloak, as though it was Cephisodotus who was wronging him by wearing such shoes, and not he who was wronging Cephisodotus by having reduced him to poverty by robbing him of his property.

5.12So much must suffice on these topics; I will now return to the point from which I digressed. note Menexenus (II.), the son of Cephisophon and cousin to Cephisodotus here, and to me, who had a right to the same share of the estate as I had, proceeded to prosecute those who had borne false witness against us and him, and obtained a conviction against Lycon, the first man whom he brought into court. His evidence had been that Dicaeogenes (III.) had been adopted as sole heir by our uncle; 5.13he was convicted of perjury for giving evidence to this effect. When Dicaeogenes (III.), gentlemen, found that he could no longer deceive you, he advised Menexenus (II.), who was acting for us as well as for himself (I am ashamed to be obliged by his rascality to mention it), to do—what do you think?—himself to take the share of the estate which was due to him and to throw over us, on whose behalf he was acting, and let off those of the witnesses who had not yet been convicted! And we, thus treated by our friends and our enemies, kept quiet. On these points I will now produce witnesses before you.Witnesses

5.14Menexenus (II.) was paid out as he deserved for his evil conduct, being deceived by Dicaeogenes (III.); he let off the accused witnesses and threw us over, but he received no reward for his services. Having been thus wronged by Dicaeogenes (III.), he made common cause with us again; and we, judging that Dicaeogenes (III.) had no longer any right to any part of the property forming the estate, since the witnesses had been convicted, claimed from him the whole estate on the ground of affinity. That our decision to act thus has been a right one and that Dicaeogenes (III.) has no longer any right to a share in the estate, I shall easily prove to you. 5.15Two wills were produced, one made long ago, the other much more recent. Under the old will, which Proxenus, the father of Dicaeogenes (III.) here, produced, the latter was to be heir by adoption to one-third of our uncle's estate; according to the will which Dicaeogenes (III.) himself produced, he was to be heir to the whole estate. Of these two wills Dicaeogenes (III.) persuaded the judges that the one, namely that produced by Proxenus, was not genuine; those who bore witness that the other, namely that which Dicaeogenes (III.) produced, was our uncle's genuine will, were convicted of perjury. 5.16Both wills being thus invalidated and it being admitted that no other will existed, no one had any claim to the estate under testamentary disposition, but it could be claimed on grounds of affinity by the sisters of the deceased Dicaeogenes (II.), among whom were our mothers. note We therefore resolved to claim the estate on grounds of affinity, and we each claimed our share. When we were on the point of making our affidavit, note Leochares here put in a protestation that the estate was not adjudicable to us. note 5.17We then indicted Leochares, with the result that the suit claiming the estate was struck off the list, and the action for perjury came on. In court, after we had brought forward all the arguments which we are presenting on the present occasion, and Leochares had made a lengthy defence, the judges decided that Leochares had committed perjury. When this result became evident after the votes had been taken out of the urns, I do not think I need dwell upon the appeals which Leochares made to the judges and to us or the penalties which we were entitled to exact on that occasion; but I will tell you the compromise to which we came. 5.18On our agreeing with the archon not to count the votes but to mix them together, Dicaeogenes (III.) gave up two-thirds of the estate in favor of the sisters of Dicaeogenes (II.) and agreed to hand over these shares without further discussion, and Leochares here undertook to be surety that he would carry out his promise. He was not the only surety, for Mnesiptolemus of Plotheia gave a similar undertaking. Of these facts I will now produce witnesses before you.Witnesses

5.19Having been thus treated by Leochares, though it was possible for us to have him deprived of civil rights since we had obtained a verdict for perjury against him, we did not wish to do so, but were satisfied to recover what belonged to us and be quit of him. Having behaved thus towards Leochares and Dicaeogenes (III.) we were deceived by them, gentlemen; for Dicaeogenes (III) did not hand over the two-thirds of the estate, though he had agreed in court to do so, and Leochares refuses to admit that he undertook to be surety on that occasion. 5.20Yet if he had not given surety in the presence of the judges, five hundred in number, and of those who were present in court, I don't know what he could have done. note To prove, therefore, that they are obviously lying, we are producing as witnesses those who were present when Dicaeogenes (III.) gave up two-thirds of the estate and promised to hand it over without further dispute to Dicaeogenes' (II.) sisters, and Leochares undertook to be surety that he would actually perform what he promised. And we beseech you, gentlemen, if any of you were present on that occasion, to recollect whether we are speaking the truth and to aid us. 5.21For, gentlemen, if Dicaeogenes (III.) is speaking the truth, what advantage was it to us to have won our case, and what disadvantage was it to my opponent to be defeated? For if he simply renounced, as he alleges, his claim to the two-thirds of the estate but did not agree to hand it over without further dispute, what did he lose by renouncing property, the value of which he was still holding? For even before he lost his case, the property which we are claiming was not in his possession but in the hands of those who bought it from him or held it on mortgage, whom he ought to have paid off and then given us our share. 5.22That is why we insisted on his providing sureties, because we had no confidence that he would carry out his agreement. Indeed except two small buildings outside the walls and sixty plethra note of land in the Plain note we have recovered nothing: the rest is in the possession of those to whom he sold or mortgaged it. We are making no attempt to eject them, because we are afraid of losing suits against them; for when we tried to eject Micion from the bath-house at the suggestion of Dicaeogenes (III.), who said that he would not confirm his title, note we were fined forty minae, all through Dicaeogenes, gentlemen. 5.23For thinking that he would not confirm any title to any of the property to which he renounced his claim in our favor in the court, we vigorously attacked Micion before the judges, being willing to run any risk of Dicaeogenes (III.) confirming Micion's title to the bath-house, and never imagining that he would do the very opposite of what he had agreed to do, our sole reason for so acting being that the sureties had been given. 5.24Dicaeogenes (III.), however, having renounced the portion of the property which he still admits that he renounced in our favor, confirmed Micion's title to the bath-house. Thus I was in the unfortunate position of not only having received nothing from the estate but of having also lost forty minae, and left the court having been fooled by Dicaeogenes (III.). Of these things I will now produce witnesses before you.Witnesses

5.25Such is the treatment, gentlemen, which we have received from Dicaeogenes (III.). Leochares, who became his surety and is the cause of all our troubles, says that he never undertook to act as surety to the extent stated in the evidence against him, on the ground that it is not implied in the document drawn up before the tribunal. We, gentlemen, being hurried at the time in court, wrote down some of the points and obtained witnesses in support of others; but our opponents affirm the validity of those parts of the agreement then made which are to their own advantage, even if they are not in writing, while they deny the validity of what is contrary to their interests unless it exists in writing. 5.26For myself, gentlemen, I am not surprised that they repudiate their verbal agreements, for they are unwilling to execute the written conditions. We will furnish another proof of our veracity. Dicaeogenes (II.) gave his sister note in marriage to Protarchides of Potamos with a dowry of forty minae, but instead of paying the dowry to her in cash he made over to Protarchides the house which he possessed in the Cerameicus. Now this woman, the wife of Protarchides, has a right to just the same share of the estate as my mother. 5.27Now when Dicaeogenes (III.) renounced the two-thirds of the estate in favor of the women, Leochares suggested that Protarchides should hand over to him the building which he possessed in lieu of the dowry, on the ground that he was surety, and receive from him on his wife's behalf the share of the estate which accrued to her. note He took over the building, but never paid over the share of the estate. And of these facts I will now produce Protarchides as witness.Witness

5.28Regarding the repairs to the bath-house and the cost of building, Dicaeogenes (III.) has declared on a former occasion, and will now perhaps again declare, that we agreed to re-imburse him his expenses but failed to do so, and that he therefore cannot get rid of the creditors and restore what he ought to us. 5.29Now, gentlemen, we in court, when we obliged him to renounce this property, let him off the payment of the revenue he had received from it in consideration of the public services which he had performed note and the expenses which he had incurred on the buildings, in accordance with the decision of the judges and subsequently, under no compulsion but of our own free will, in consideration of the repairs which he had carried out, gave him as a special gift, in addition to his third share of the estate, the town-house which he sold to Philonicus for 5000 drachmae. 5.30We made Dicaeogenes (III.) this present not because of his honesty, but as a proof that we have more regard for our relatives, even though they may be thorough rascals, than for money. For, indeed, on an earlier occasion, when it was in our power to punish Dicaeogenes (III.) and deprive him of his property, we did not wish to possess ourselves of anything which belonged to him but were satisfied with merely obtaining what was our own. He, on the other hand, when he had us in his power, robbed us of all he could and tried to ruin us, as though we were his foes and not his relatives. 5.31We will now furnish a strong proof of our own forbearance and the injustice of Dicaeogenes. When the action against Leochares was coming on, gentlemen, in the month of Maemacterion, note Leochares and Dicaeogenes (III.) asked us to postpone the action and submit the matter to arbitration. We, just as though we had suffered only slight injuries, agreed to this and submitted the matter to four arbitrators, two of whom were nominated by us and two by our opponents. In their presence we agreed to abide by their decision and swore an oath to this effect. 5.32The arbitrators said, that if they could effect a compromise without putting themselves under an oath, they would do so; otherwise they would themselves also take an oath and declare what they regarded as just. The arbitrators interrogated us many times and learnt the facts. The two whom I had proposed, Diotimus and Melanopus, expressed their readiness, with or without an oath, to declare what they regarded as the truth in the statements; but the arbitrators whom Leochares had proposed refused to do so. 5.33Yet Diopeithes, one of the two arbitrators, note was brother-in-law of Leochares here and a personal enemy of mine, and had been my opponent in other actions regarding contracts, while Demaratus, his colleague, was a brother of Mnesiptolemus, who acted with Leochares as surety for Dicaeogenes (III.). These men, however, refused to pronounce their opinion, although they had made us swear that we would abide by whatever they themselves decided. Of these facts I will now produce witnesses before you.Witnesses

5.34Is it not extraordinary, gentlemen, that Leochares should ask you to absolve him where Diopeithes his brother-in-law condemned him? Or how can it be right for you to acquit Leochares when even his relatives did not acquit him? note I beseech you, therefore, to condemn Leochares, in order that we may recover what our forefathers left to us and possess not merely their names but their property also. The personal property of Leochares we do not covet. 5.35Dicaeogenes (III.), gentlemen, has no claim to your pity for misfortune or poverty, nor does he deserve any kindness for having done any good service to the city; he has no title to your consideration on either of these grounds, as I will prove to you, gentlemen. I will show you that he is at once rich and the meanest of men in his relations both to the city and to his kinsmen and to his friends. Having received by your verdict the property which brought in a yearly revenue of eighty minae, and having enjoyed it for ten years, he refuses to admit that he has saved money out of it nor can he show how he expended it, gentlemen. 5.36It is well worth your while to look into the matter. He acted as choregus for his tribe at the Dionysia and was fourth; as choregus in the tragic contest and Pyrrhic dances he was last. note These were the only public services which he undertook and then only under compulsion, and this was the fine show he made as choregus in spite of his great wealth! Moreover, though so many trierarchs were appointed, he never acted in this capacity by himself nor has he ever been associated in it with another note in all those years of crisis; yet others possessing less capital than he has income, act as trierarchs. 5.37Yet, gentlemen, his large fortune was not bequeathed to him by his father but given to him by your verdict; so that, even if he were not an Athenian citizen, he was in duty bound for this reason alone to do the city good service. Though so many extraordinary contributions for the cost of the war and the safety of the city have been made by all the citizens, Dicaeogenes (III.) has never contributed anything, except that after the capture of Lechaeum, note at the request of another citizen, he promised in the public assembly a subscription of 300 drachmas, a smaller sum than Cleonymus the Cretan. note 5.38This sum he promised but did not pay, and his name was posted on a list of defaulters in front of the statues of the Eponymous Heroes, note which was headed: “These are they who voluntarily promised the people to contribute money for the salvation of the city and failed to pay the amounts promised.” Indeed, gentlemen, what ground is there for astonishment that he deceived me, a single citizen, when he acted in this manner towards all of you united in assembly? Of these facts I will now produce witnesses before you.Witnesses

Such are the manner and extent of the public services which Dicaeogenes has rendered to the city out of so large a fortune. 5.39Towards his relatives he is the sort of man that you see; some of us he robbed of our property because he was stronger than we were, others he allowed to resort to paid employment through lack of the necessities of life. Everyone saw his mother seated in the shrine of Eileithyia note and calling down upon him reproaches which I am ashamed to mention but which he was not ashamed to justify. 5.40Amongst his intimates he deprived Melas the Egyptian, who had been his friend from youth upwards, of money which he had received from him, and is now his bitterest enemy; of his other friends some have never received back money which they lent him, others were deceived by him and did not receive what he had promised to give them if he should have the estate adjudicated to him. 5.41And yet, gentlemen, our forefathers, who acquired and bequeathed this property, performed every kind of choregic office, contributed large sums for your expenses in war, and never ceased acting as trierarchs. As evidence of all these services they set up in the temples out of the remainder of their property, note as memorials of their civic worth, dedications, such as tripods which they had received as prizes for choregic victories in the temple of Dionysus, or in the shrine of Pythian Apollo. 5.42Furthermore, by dedicating on the Acropolis the first-fruits of their wealth, they have adorned the shrine with bronze and marble statues, numerous, indeed, to have been provided out of a private fortune. They themselves died fighting for their country; Dicaeogenes (I.), the son of Menexenus, the father of my grandfather Menexenus (I.), while acting as general when the battle took place at Eleusis; note Menexenus (I.), his son, in command of the cavalry at Spartolus in the territory of Olynthus; note Dicaeogenes (II.), the son of Menexenus (I.), while in command of the Paralus note at Cnidus. 5.43It is the property of these men, Dicaeogenes, that you inherited and have wickedly and disgracefully squandered, and having converted it into money you now plead poverty. On what did you spend it? For you have obviously not expended anything on the city or your friends. You have certainly not ruined yourself by keeping horses—for you have never possessed a horse worth more than three minae—, nor by keeping racing teams—for you never owned even a pair of mules in spite of possessing so many farms and estates. Nor again did you ever ransom a prisoner of war. 5.44You have never even transported to the Acropolis the dedications upon which Menexenus (I.) note expended three talents and which his death prevented him from setting up, but they are still knocking about in the sculptor's workshop; and thus, while you yourself claimed the possession of money to which you had no title, you never rendered up to the gods statues which were theirs by right. 5.45What possible reason will you give, Dicaeogenes, that the judges should acquit you? Will you allege that you have performed many public services for the city and added to the dignity of the city by lavish expenditure? Will you say that as trierarch you have inflicted heavy losses upon the enemy, or bestowed great benefits upon your country in her hour of need by contributing to the expenses of the war? No, you have done none of these things. 5.46Do you claim acquital on the ground that you have proved yourself a good soldier? But you never served at all in the whole course of the long and critical war, during which the Olynthians and the islanders are dying fighting against the foe in the defence of our land, note but you, Dicaeogenes, though you were an Athenian citizen, have never served at all. Perhaps you will claim an advantage over me for the sake of your forefathers, because they slew the tyrant? note I pay them all due homage, but I do not think that you have any share of their valor. 5.47In the first place, you preferred to possess our property rather than their glory, and wished to be called son of Dicaeogenes rather than of Harmodius, note despising the right of dining in the town hall and disdaining the seats of honor and the immunities granted to the descendants of those heroes. note Further, the great Aristogeiton and Harmodius were honored, not because of their birth but because of their bravery, of which you, Dicaeogenes, have no share.

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