On the Estate of Astyphilus

Argument

Astyphilus 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.

Astyphilus, 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.

Cleon, 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.

So 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.

When, 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

That 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][*](There is a lacuna in the text at this point. “Post τὰ ἐκείνου est lacuna. [Adii Cleonem, qui dixit] suum filium ab Astyphilo adoptatum esse” (Dobree,Adversaria, 1. p. 305).) 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.[*](A deme of the tribe Acamantis, situated on the left bank of the Cephissus.) 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,

though 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.[*](The sister of Hierocles was mother of Astyphilus and of the speaker, cf. Isaeus 9.23, Isaeus 9.27.) 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

Since, 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.

He 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.

Astyphilus 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

Cleon 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.

Moreover, 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.

Furthermore, 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?

For 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.

Now 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,[*](See Introduction.) 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.

Who 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?

But 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.

For 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.

That this story is true, many of the Araphenians,[*](Members of the deme of Araphen in Eastern Attica, to which both the brothers belonged.) 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

I 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.