Isaeus, Nicostratus

On the Estate of Nicostratus

[hypothesis] Nicostratus having died in a foreign land, Hagnon and Hagnotheus, as being his first cousins （their father having been brother to Nicostratus's father）, contend for the succession to his estate against Chariades, who claims to be heir by bequest, that is to say, by will. Isaeus, the orator, being a kinsman of Hagnon and his brother, speaks as their advocate.¹ The question at issue is one of fact.

Hagnon here and Hagnotheus, gentlemen, are intimate friends of mine, as was their father before them. It seems, therefore, only natural to me to support their case to the best of my ability.

For the events which happened in a foreign land it is not possible to find witnesses or easy to convict our adversaries of any lies which they may tell, because neither of my clients has ever been to the country in question; but the events which have occurred here in Athens seem to me to provide you with sufficient proof that all those who lay claim to Nicostratus's estate on the ground of bequest are desirous of deceiving you. [2] In the first place, gentlemen, it is proper that you should consider the different names attributed to the deceased and determine which of the two parties has laid his claim in the more straightforward and natural manner. Hagnon here and Hagnotheus described Nicostratus in their claim as the son of Thrasymachus and declare that they are his first cousins and prove these statements by witnesses. [3] Chariades and his supporters, on the other hand, assert that Nicostratus was the son of Smicrus and yet claim the estate of the son of Thrasymachus. My clients make no pretence that they know anything of the name of Smicrus or that it has anything to do with them; they declare that Nicostratus was the son of Thrasymachus, and it is likewise his estate which they claim. [4] If the parties were in agreement as to the name of Nicostratus's father and were disputing only about the estate, you would only have to consider whether Nicostratus, on whose identity both were agreed, did or did not leave a will. But as it is, how is it possible to assign two fathers to the man? Yet this is what Chariades has done; he himself claimed the estate of Nicostratus the son of Smicrus, and paid the deposit for a suit against my clients when they claimed the estate of the son of Thrasymachus, just as though it were a question of one and the same person. [5] It is all an insolent plot and conspiracy. They think that my clients, if the matter is simple and nothing is introduced to confuse the issue, will have no difficulty in proving that Nicostratus made no will; whereas, if they allege that the father is not the same and likewise claim the estate, they know full well that my clients will have to employ a longer argument to prove that Nicostratus was the son of Thrasymachus than to convince you that he left no will. [6] Further, if they admitted that Nicostratus was the son of Thrasymachus, they would be unable to prove that my clients are not his cousins; but, by inventing another father for the deceased, they have introduced a discussion about his parentage as well as about the will. [7]

But it is not only from these proceedings but from all that has happened from the beginning that you can be sure that those who are thus plotting against my clients are strangers to the family. For who did not cut the hair² when the two talents arrived from Ace³? Who did not wear black, hoping by mourning to inherit the estate? What was the number of would-be kinsmen and adopted sons who claimed Nicostratus's property? [8] Demosthenes declared himself to be his nephew, but renounced his claim when he was unmasked by my clients. Telephus asserted that Nicostratus had made him a gift of all his property; he too soon desisted. Ameiniades appeared before the archon and produced as Nicostratus's son a child not yet three years old, although it was eleven years since Nicostratus had been in Athens. [9] Pyrrhus of Lamptra declared that the property had been consecrated by Nicostratus to Athena but that it had been given him by Nicostratus himself.⁴ Ctesias of Besa and Cranaus at first asserted that Nicostratus had been condemned to pay them a talent; when they could not prove this, they pretended that he was their freedman;⁵ they were no better able to prove their statement. [10] These were the men who at the very beginning swooped down upon the estate of Nicostratus. Chariades at that time made no claim, but came forward later, foisting in not only himself but also his child by his mistress. It was all the same to him whether he was going to inherit the estate or have his son recognized as a citizen. He, too, perceiving that he would be defeated on the question of the child's birth, jettisoned the child's claim and paid a deposit to bring an action asserting his own right under a will. [11]

It would be a good thing, gentlemen, that any claimant to an inheritance under a will, if he fails, should not be fined at the usual rate⁶ but be made to pay into the treasury the full amount of the fortune which he set out to obtain; thus the laws would not be despised nor would the relatives be insulted, and above all, no fictions would be invented against the dead. But, since full liberty is given to anyone according to his fancy to claim anyone else's estate, it behoves you to sift their claims with every possible care and to omit no possible precaution. [12] It seems to me that in suits concerning inheritances, and in these alone, more credit ought to be given to circumstantial proof than to the statements of witnesses. When other legal instruments are the subject of litigation, it is not very difficult to convict those who give false evidence, for they give their evidence to the prejudice of the supposed party to the deed alive and present; but when a will is in question, how can one recognize those who are not telling the truth, unless the divergences in the evidence are great, since the party against whom they bear witness is dead, the relatives know nothing of the facts, and the method of refuting the evidence is by no means clear? [13] Further, gentlemen, most of those who make wills do not even mention to those who are present the purport of their will, but only invite them to attest the fact that they have made a will, and it is within the range of possibility that a will has been substituted or alterations made in a sense directly opposed to the wishes of the deceased; for the witnesses will have no more knowledge than anyone else whether the will produced is that which they were summoned to attest. [14] Since, then, it is possible to deceive those who were admittedly present when the will was made, how much more easily might an attempt be made to impose upon you who know nothing of the matter?

Again, gentlemen, the law ordains that a will in order to be valid must not merely be executed but executed by a man in his right senses. You ought, therefore, to examine, first, whether the deceased made a will and, secondly, whether he was in his right mind at the time. [15] Since, however, we deny that a will was made at all, how can you decide whether that a man was insane when he made a will, until you are convinced that actually he made a will? Observe, then, how difficult it is to discover whether those who claim under a will are telling the truth; those, on the other hand, who claim by right of kinship, in the first place, need not produce witnesses to prove that the inheritance is theirs—for it is universally admitted that the property of a deceased person devolves on his next-of-kin— [16] and, secondly, the laws, not only those which deal with consanguinity but also those which treat of testamentary disposition, are in favor of kinsmen. For the law allows no one to dispose of his own property if his reason is impaired by old age or disease or the other causes with which you are familiar; but by right of relationship the next-of-kin has an undisputed title to the property of a deceased person, whatever was the state of the latter's faculties. [17] Beside this, in order to believe in a will, you are obliged to rely on witnesses, by whom it is possible to be deceived—if this were not so, there would be no prosecutions for perjury—but when the claim is based on kinship, you act on your own authority, for the next-of-kin assert their right in accordance with the laws which you have laid down. [18] In addition to this, gentlemen, if those who claim under the will were admittedly close friends of Nicostratus, even then the conclusive proof would be lacking, though there would be a greater probability that the will could be regarded as genuine; for before now testators, being ill-disposed towards their kinsmen, have preferred strangers who were their friends to their nearest relatives by blood. But in the present case Nicostratus and Chariades were neither members of the same mess nor friends nor members of the same company,⁷ and on all these points we have produced witnesses before you. [19] And consider this further point, which is of great importance and is the clearest possible proof of Chariades' impudence. Whereas he neither took up the body of his adopted father nor committed it to the flames nor collected the bones, but left all these duties to be done by complete strangers, should he not be regarded as most impious in claiming to inherit the property of the deceased, though he never performed any of the customary rites over him? [20] Shall I be told that, after having performed none of these duties, he administered Nicostratus's property?⁸ Evidence of these facts, too, has been given you, and even he himself does not deny most of them. Makeshift excuses have, of course, been found to explain all his acts; for what other resource remains to one who expressly admits the facts? [21]

You must now be well aware, gentlemen, that these persons have no legal right to the property of Nicostratus, but wish to deceive you and to deprive my clients, who are his kinsmen, of an inheritance which lawfully belongs to them. Chariades is not the only person who has acted thus; many other claimants to the property of men who have died abroad have arisen, sometimes even without having been acquainted with them. [22] For they consider that, if they are successful, it will be possible for them to enjoy the property of others, while, if they fail, the risk is inconsiderable; there are always men who are willing to perjure themselves, and the attempted refutations of their evidence are dealing with the unknown. In a word, there is a vast difference between claiming by right of kinship and claiming under a will. But your duty, gentlemen, is first of all to examine the will and decide whether you think that it is genuine; for this is what the laws enjoin and is the justest course. [23] But since you have no certain personal knowledge of the truth, and since the witnesses to the will were friends not of the deceased but of Chariades, who wishes to seize property which does not belong to him, what could be juster than by your verdict to award the property of a kinsmen to his kinsmen? For, indeed, if anything had happened to my clients, their property would have passed to none other than Nicostratus; for he would have claimed it by the same right of kinship, being their first cousin, the son of their father's own brother. [24] But, by Heaven, I am forgetting; Hagnon and Hagnotheus are not kinsmen of Nicostratus according to the allegation of our adversaries, but his kinsmen are quite different people. Are these kinsmen then bearing witness in favor of the claimant under the will rather than themselves contesting the property by right of kinship? Surely they are not so insane as to believe so easily in the will and renounce their claim to so much money! Nay, to judge from what these men themselves say, it is to the advantage of these supposed kinsmen themselves that my clients, rather than Chariades, should have the estate of Nicostratus adjudicated to them. [25] For, if my clients, who claim by right of kinship, receive the estate, it will be always open to the supposed kinsmen whenever they like at any future date to claim the estate on the grounds of relationship, and prove to you that they are themselves more nearly related to Nicostratus, and that he was the son of Smicrus and not of Thrasymachus. On the other hand, if Chariades inherits the estate, it will never be possible for any relative to bring an action for the property of Nicostratus; for when once the property is in possession of one to whom it has been adjudicated in virtue of a will, what will those who claim by right of kinship be able reasonably to allege? [26]

Whatever each of you would consider just on his own behalf, let that be your determination in favor of these young men. They have produced before you witnesses to prove, first, that they and Nicostratus are first cousins, the sons of own brothers; secondly, that they never had any quarrel with him; thirdly, that they carried out his burial; and further that Chariades was never a friend of Nicostratus either here in Athens or in the army, and, lastly, that the supposed business association between them, on which Chariades most relies, is a fiction. [27]

Apart from this, gentlemen, it is only right that you should examine the characters of the respective claimants. Thrasippus, the father of Hagnon and Hagnotheus, has before now supported public burdens and paid contributions and otherwise proved himself a worthy citizen. My clients themselves have never quitted this country unless they have been sent somewhere by your orders, and at home they are not unserviceable to the state; they serve in the army, they make contributions and in every other respect perform what is required of them, and, as everyone knows, they behave as law-abiding citizens; [28] so that it is much more fitting that they should claim to receive the estate by gift than Chariades. The latter, when he resided here, was first caught in the act of theft and thrown into prison; he was subsequently released with certain other criminals by the Eleven,⁹ all of whom you publicly condemned to death,¹⁰ and, having been again denounced to the Council as a malefactor, he absconded and did not appear to answer the charge, [29] and for seventeen years after this he never came near Athens, and only returned on the death of Nicostratus. He has never once served the state as a soldier nor made any contribution, except perhaps since he claimed Nicostratus's estate, nor has he performed any other public service. And now, though such is his character, so far from being content if he avoids punishment for his misdeeds, he actually claims the property of others! [30] If my clients were fond of quarrelling or resembled so many of their fellow-citizens, he would not perhaps be claiming Nicostratus's estate but would be on trial for his life. But, as it is, gentlemen, it shall be left to someone else, if he wishes, to punish him; [31] your care let it be to assist my clients, and not to show favor to those who wish unjustly to possess the property of others rather than to the next-of-kin of the deceased, who have besides already rendered him service. Remember the laws and the oaths which you swore and also the evidence which we have placed before you, and give your verdict in conformity with justice.