Justinian•DIGESTA
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Dig. 28.3.0. De iniusto rupto irrito facto testamento.
28.2.0. On instituting or disinheriting children and posthumous heirs.
Dig. 28.3.0. On a will made unjust, broken, or void.
Dig. 28.6.0. De vulgari et pupillari substitutione.
28.5.0. On the institution of heirs.
Dig. 28.6.0. On vulgar and pupillary substitution.
A qua aetate testamentum vel masculi vel feminae facere possunt, videamus. verius est in masculis quidem quartum decimum annum spectandum, in feminis vero duodecimum completum. utrum autem excessisse debeat quis quartum decimum annum, ut testamentum facere possit, an sufficit complesse?
Let us see from what age males or females can make a testament. It is more correct that, in males, the 14th year is to be regarded; in females, however, the 12th completed. But whether one ought to have exceeded the 14th year in order to be able to make a testament, or is it sufficient to have completed it?
propose someone born on the Kalends of January who made a testament on his very natal day in his fourteenth year: will the testament be valid? I say it is valid. I judge further: even if he made it on the day before the Kalends after the sixth hour of the night, the testament is valid; for by now he seems to have completed the fourteenth year, as it seems to Marcian.
Si cui aqua et igni interdictum sit, eius nec illud testamentum valet quod ante fecit nec id quod postea fecerit: bona quoque, quae tunc habuit cum damnaretur, publicabuntur aut, si non videantur lucrosa, creditoribus concedentur.
If anyone has been interdicted from water and fire, neither that testament which he made before is valid nor that which he may have made afterwards: his goods also, which he had at the time when he was condemned, will be made public property, or, if they do not seem lucrative, will be conceded to the creditors.
Lege cornelia testamenta eorum, qui in hostium potestate decesserint, perinde confirmantur, ac si hi qui ea fecissent in hostium potestatem non pervenissent, et hereditas ex his eodem modo ad unumquemque pertinet. quare servus heres scriptus ab eo, qui in hostium potestate decesserit, liber et heres erit seu velit seu nolit, licet minus proprie necessarius heres dicatur: nam et filius eius, qui in hostium potestate decessit, invitus hereditati obligatur, quamvis suus heres dici non possit, qui in potestate morientis non fuit.
By the Cornelian law the testaments of those who have died in the power of the enemy are confirmed just as if those who made them had not come into the power of the enemy, and the inheritance from these pertains to each person in the same manner. Wherefore a slave written as heir by one who has died in the power of the enemy will be free and heir, whether he wishes it or not, although he is less properly called a “necessary heir”: for the son too of one who has died in the power of the enemy is bound to the inheritance unwilling, although he cannot be called a “suus heres,” who was not in the power of the dying man.
Qui in testamento domini manumissus est, si ignorat dominum decessisse aditamque eius esse hereditatem, testamentum facere non potest, licet iam pater familias et sui iuris est: nam qui incertus de statu suo est, certam legem testamento dicere non potest.
He who has been manumitted in his master’s testament, if he is unaware that the master has died and that his inheritance has been entered upon, cannot make a testament, although he is already pater familias and sui iuris: for he who is uncertain about his status cannot declare a certain law by a testament.
Is cui lege bonis interdictum est testamentum facere non potest et, si fecerit, ipso iure non valet: quod tamen interdictione vetustius habuerit testamentum, hoc valebit. merito ergo nec testis ad testamentum adhiberi poterit, cum neque testamenti factionem habeat.
He to whom by law there is an interdiction from his goods cannot make a testament, and if he does, it is invalid by the law itself: however, whatever testament he will have had older than the interdiction, this will be valid. rightly, therefore, neither can he be brought in as a witness to a testament, since he does not have testamentary capacity.
Si filius familias aut pupillus aut servus tabulas testamenti fecerit signaverit, secundum eas bonorum possessio dari non potest, licet filius familias sui iuris aut pupillus pubes aut servus liber factus decesserit, quia nullae sunt tabulae testamenti, quas is fecit, qui testamenti faciendi facultatem non habuerit.
If a son under paternal power, or a ward, or a slave has made and sealed testamentary tablets, possession of the estate (bonorum possessio) cannot be granted in accordance with them, although the son under paternal power has become sui iuris, or the ward has reached puberty, or the slave, having been made free, has died; for there are no testamentary tablets which were made by one who did not have the faculty of making a testament.
Qui testamento heres instituitur, in eodem testamento testis esse non potest. quod in legatario et in eo qui tutor scriptus est contra habetur: hi enim testes possunt adhiberi, si aliud eos nihil impediat, ut puta si impubes, si in potestate sit testatoris.
He who is instituted heir by a testament cannot be a witness in the same testament. The contrary is held in the case of a legatee and of one who is written/appointed as tutor: for these may be brought in as witnesses, if nothing else hinders them—for instance, being underage, or being in the power of the testator.
Heredes palam ita, ut exaudiri possunt, nuncupandi sint: licebit ergo testanti vel nuncupare heredes vel scribere: sed si nuncupat, palam debet. quid est palam? non utique in publicum, sed ut exaudiri possit: exaudiri autem non ab omnibus, sed a testibus: et si plures fuerint testes adhibiti, sufficit sollemnem numerum exaudire.
Heirs are to be nuncupated openly, in such a way that they can be heard: therefore it will be lawful for the testator either to nuncupate the heirs or to write them down: but if he nuncupates, he must do it openly. What is “openly”? not of course in public, but so that it can be heard distinctly: to be heard, moreover, not by everyone, but by the witnesses: and if more witnesses have been adhibited, it suffices that the solemn number hear.
Si quid post factum testamentum mutari placuit, omnia ex integro facienda sunt. quod vero quis obscurius in testamento vel nuncupat vel scribit, an post sollemnia explanare possit, quaeritur: ut puta stichum legaverat, cum plures haberet, nec declaravit de quo sentiret: titio legavit, cum multos titios amicos haberet: erraverat in nomine vel praenomine vel cognomine, cum in corpore non errasset: poteritne postea declarare, de quo senserit? et puto posse: nihil enim nunc dat, sed datum significat.
If, after a testament has been made, it is decided that something be changed, everything must be done anew from the beginning. But as to the case where someone either nuncupates or writes something more obscurely in a will, the question is whether he can explain it after the solemnities: for instance, he had bequeathed Stichus, when he had several, and did not declare which one he meant; he bequeathed to Titius, when he had many friends named Titius; he had erred in the name or praenomen or cognomen, when he had not erred as to the person: can he afterward declare whom he intended? And I think he can: for he now gives nothing, but signifies what was given.
but also, if later he should add a note to the legacy, either by his own voice or in letters, stating either the sum or the name of the legatee which he had not written, or the quality of the coins, has he acted correctly? And I think that even the quality of the coins can be added afterwards: for even if it had not been added, in any case it would be acceptable that a conjecture be made of what he left, either from the neighboring writings or from the custom of the paterfamilias or of the region.
In testamentis, in quibus testes rogati adesse debent, ut testamentum fiat, alterius rei causa forte rogatos ad testandum non esse idoneos placet. quod sic accipiendum est, ut, licet ad aliam rem sint rogati vel collecti, si tamen ante testimonium certiorentur ad testamentum se adhibitos, posse eos testimonium suum recte perhibere.
In testaments, in which witnesses requested ought to be present in order that the testament be made, it is held that those who have perhaps been requested on account of another matter are not suitable to testify. This is to be understood thus: although they have been requested or gathered for another purpose, if, however, before the testimony they are informed that they have been adduced for the testament, they can duly give their testimony.
Si is, qui testamentum faceret, heredibus primis nuncupatis, priusquam secundos exprimeret heredes, obmutuisset, magis coepisse eum testamentum facere quam fecisse varus digestorum libro primo servium respondisse scripsit: itaque primos heredes ex eo testamento non futuros. labeo tum hoc verum esse existimat, si constaret voluisse plures eum, qui testamentum fecisset, heredes pronuntiare: ego nec servium puto aliud sensisse.
If he who was making a testament, after the first heirs had been nuncupated, before he expressed the second heirs, fell mute, Varus wrote that in the first book of the Digest Servius had responded that he had rather begun to make a testament than had made it; and so the first heirs would not be heirs under that testament. Labeo then considers this to be true, if it were established that he who had made the testament wished to pronounce more heirs: I for my part do not think that Servius understood otherwise either.
Filius inter medias quoque heredum institutiones recte exheredatur et erit a toto gradu summotus, nisi forte ab unius persona eum testator exheredaverit: nam si hoc fecit, vitiosa erit exheredatio. quemadmodum si ita eum exheredaverit " quisquis heres mihi erit, filius exheres esto": nam, ut iulianus scribit, huiusmodi exheredatio vitiosa est, quoniam post aditam hereditatem voluit eum summotum, quod est impossibile.
The son too is rightly disinherited even among the middle positions of the institution of heirs, and he will be removed from the whole tier, unless perhaps the testator has disinherited him with respect to the person of a single heir: for if he has done this, the disinheritance will be defective. Likewise, if he has disinherited him thus: "whoever shall be my heir, let the son be disinherited": for, as Julian writes, a disinheritance of this kind is defective, since he wished him removed after the inheritance had been entered upon, which is impossible.
Si ita testatus sit pater familias, ut a primo quidem gradu filium praeteriret, a secundo solo exheredaret, sabinus et cassius et iulianus putant perempto primo gradu testamentum ab eo gradu exordium capere, unde filius exheredatus est: quae sententia comprobata est.
If the paterfamilias should have made his testament in such a way that in the first grade he indeed passed over his son, but only in the second he disinherited him, Sabinus and Cassius and Julianus think that, with the first grade quashed, the testament takes its exordium from that grade whence the son has been disinherited: which opinion has been approved.
Placet omnem masculum posse postumum heredem scribere, sive iam maritus sit sive nondum uxorem duxerit: nam et maritus repudiare uxorem potest et qui non duxit uxorem, postea maritus effici. nam et cum maritus postumum heredem scribit, non utique is solus postumus scriptus videtur, qui ex ea quam habet uxorem ei natus est, vel is qui tunc in utero est, verum is quoque, qui ex quacumque uxore nascatur:
It is held that every male can write a posthumous child as heir, whether he is already a husband or has not yet taken a wife: for both a husband can repudiate a wife, and he who has not taken a wife can later become a husband. For also when a husband writes a posthumous child as heir, he is not deemed to have written as posthumous only him who is born to him from the wife whom he has, or him who is then in the womb, but also him who will be born from whatever wife:
Sed est quaesitum, an is, qui generare facile non possit, postumum heredem facere possit, et scribit cassius et iavolenus posse: nam et uxorem ducere et adoptare potest: spadonem quoque posse postumum heredem scribere et labeo et cassius scribunt: quoniam nec aetas nec sterilitas ei rei impedimento est.
But the question has been raised whether one who cannot readily beget can make a posthumous heir, and Cassius and Javolenus write that he can: for he can both take a wife and adopt. Labeo and Cassius also write that a eunuch can appoint a posthumous heir, since neither age nor sterility is an impediment to this matter.
Si primo herede instituto filium exheredavero, a secundo autem substituto non exheredavero et, dum pendet, an prior aditurus sit, filius decesserit, secundum sententiam qua utimur non erit secundus heres, quasi ab initio inutiliter institutus, cum ab eo filius exheredatus non sit. quod si in postumo filio idem acciderit, ut natus vivo patre a quo exheredatus sit moriatur, eadem dicenda erunt de substituto, quoniam cum est natus filius, loco eius est, qui superstes est.
If, with the first heir instituted, I shall have disinherited my son, but by the second, however, substituted, I shall not have disinherited him, and, while it is pending whether the prior will enter upon the inheritance, the son has died, according to the opinion which we use the second will not be heir, as if from the beginning he had been ineffectually instituted, since by him the son has not been disinherited. But if the same should happen in the case of a posthumous son, namely that, having been born while his father is alive, by whom he has been disinherited, he dies, the same things must be said about the substitute, since when a son is born, he is in the place of one who survives.
Si quis postumos, quos per aetatem aut valetudinem habere forte non potest, heredes instituit, superius testamentum rumpitur, quod natura magis in homine generandi et consuetudo spectanda est quam temporale vitium aut valetudo, propter quam abducatur homo a generandi facultate.
If someone institutes as heirs posthumous children whom he perhaps cannot have by reason of age or health, the earlier testament is broken, since the nature of begetting in man and custom are to be regarded rather than a temporary defect or condition of health, by reason of which a man is withdrawn from the faculty of begetting.
Si filium exheredavero nepotemque ex eo praeteriero et alium heredem instituero et supervixerit filius post mortem meam, licet ante aditam hereditatem decesserit, non tamen nepotem rupturum testamentum iulianus et pomponius et Marcellus aiunt. diversumque est, si in hostium potestate filius sit et decesserit in eodem statu: rumpit enim his casibus nepos testamentum, quod moriente avo fili ius pependerit, non abscisum ut superiore casu fuerit. sed et si heres institutus omiserit hereditatem, erit legitimus heres, quoniam haec verba " si intestato moritur" ad id tempus referuntur, quo testamentum destituitur, non quo moritur.
If I have disinherited my son and passed over the grandson from him, and have instituted another as heir, and the son should have survived after my death, although he died before the inheritance was entered upon, nevertheless Julianus and Pomponius and Marcellus say that the grandson will not break the testament. And it is different if the son is in the power of the enemy and dies in the same condition: for in these cases the grandson breaks the testament, because at the grandfather’s death the son’s right was hanging (suspended), not cut off as it was in the previous case. But also, if the instituted heir omits (declines) the inheritance, the grandson will be the lawful heir, since these words “if he dies intestate” refer to that time at which the testament is left without effect, not to the time at which he dies.
Commodissime is qui nondum natus est ita heres instituitur: " sive vivo me sive mortuo natus fuerit, heres esto", aut etiam pure neutrius temporis habita mentione. si alteruter casus omissus fuerit, eo casu qui omissus sit natus rumpit testamentum, quia hic filius nec sub condicione quidem scriptus heres intellegitur, qui in hunc casum nascitur, qui non est testamento adprehensus.
Most conveniently, one who is not yet born is instituted heir thus: "whether he be born while I live or after my death, let him be heir," or even absolutely, mention of neither time being made. If either event has been omitted, a birth occurring in the event that was omitted breaks the testament, because this son is not understood to have been written as heir even under a condition, since he is born into an event which is not apprehended by the testament.
In suis heredibus evidentius apparet continuationem dominii eo rem perducere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo domini existimantur. unde etiam filius familias appellatur sicut pater familias, sola nota hac adiecta, per quam distinguitur genitor ab eo qui genitus sit. itaque post mortem patris non hereditatem percipere videntur, sed magis liberam bonorum administrationem consequuntur.
In their own heirs it appears more evidently that the continuation of dominion carries the matter to this point, that no inheritance seems to have been, as if these were long since the owners, who even with the father living are in a certain manner considered owners. Whence also the filius familias is called just like the pater familias, with this one mark added, by which the begetter is distinguished from him who has been begotten. And so after the death of the father they do not seem to receive an inheritance, but rather they obtain a free administration of the goods.
Si ita scriptum sit: " si filius mihi natus fuerit, ex besse heres esto: ex reliqua parte uxor mea heres esto. si vero filia mihi nata fuerit, ex triente heres esto: ex reliqua parte uxor heres esto", et filius et filia nati essent, dicendum est assem distribuendum esse in septem partes, ut ex his filius quattuor, uxor duas, filia unam partem habeat: ita enim secundum voluntatem testantis filius altero tanto amplius habebit quam uxor, item uxor altero tanto amplius quam filia: licet enim suptili iuris regulae conveniebat ruptum fieri testamentum, attamen cum ex utroque nato testator voluerit uxorem aliquid habere, ideo ad huiusmodi sententiam humanitate suggerente decursum est, quod etiam iuventio celso apertissime placuit.
If it were written thus: " if a son shall have been born to me, let him be heir from two-thirds: from the remaining part let my wife be heir. but if a daughter shall have been born to me, let her be heir from a third: from the remaining part let the wife be heir", and both a son and a daughter had been born, it must be said that the as is to be distributed into seven parts, so that of these the son have four, the wife two, the daughter one part: for thus, according to the will of the testator, the son will have by as much again more than the wife, likewise the wife by as much again more than the daughter. although indeed, by a subtle rule of law, it would have fit that the testament be ruptured, nevertheless, since from either child being born the testator wished the wife to have something, therefore recourse was had to a decision of this sort, humanity suggesting it, which also most plainly pleased Juventius Celsus.
Testamentum, quod hoc modo scribitur: " titius post mortem filii mei heres esto: filius exheres esto" nullius momenti est, quia filius post mortem suam exheredatus est: quare et contra tabulas paternorum libertorum huiusmodi filius bonorum possessionem accipere poterit.
A testament which is written in this way: " Titius, after the death of my son, be heir: let the son be disinherited" is of no moment, because the son has been disinherited after his own death; wherefore even against the wills of the father's freedmen such a son will be able to receive possession of the goods.
Si postumus a primo gradu exheredatus, a secundo praeteritus sit, quamvis eo tempore nascatur, quo ad heredes primo gradu scriptos pertineat hereditas, secundum tamen gradum vitiari placet ad hoc, ut praetermittentibus institutis ipse heres existat. immo et si defuncto eo heredes instituti omiserint hereditatem, non posse substitutos adire. itaque et si a primo gradu exheredatus, a secundo praeteritus, a tertio exheredatus sit et viventibus primis et deliberantibus decedat, quaeri solet omittentibus primis aditionem utrum ad eos, qui tertio gradu scripti sint, an potius ad legitimos heredes pertineat hereditas.
If a posthumous child has been disinherited in the first degree and passed over in the second, although he is born at the time when the inheritance pertains to the heirs written in the first degree, nevertheless it is held that the second degree is vitiated to this end: that, the instituted heirs passing him over, he himself becomes heir. Nay more, even if, he having died, the instituted heirs should omit the inheritance, the substitutes cannot enter upon it. And so, even if he is disinherited in the first degree, passed over in the second, disinherited in the third, and dies while the first are alive and deliberating, it is commonly asked, when the first omit the entry (aditio), whether the inheritance pertains to those who are written in the third degree, or rather to the legitimate heirs.
and in this very case he thought it more correct that it pertain to the legitimate heirs: for even when two heirs have been instituted and a substitution made in the place of each, if the posthumous child has been disinherited by the first and passed over by the second, and one of the instituted heirs should omit the inheritance, although the posthumous is excluded, nevertheless the substitute is not to be admitted.
Quod vulgo dicitur eum gradum, a quo filius praeteritus sit, non valere, non usquequaque verum esse ait: nam si primo gradu heres institutus sit filius, non debere eum a substitutis exheredari: ideoque si filio et titio heredibus institutis titio maevius substitutus sit, omittente titio hereditatem maevium eam adire posse, quamvis filius secundo gradu exheredatus non sit.
What is commonly said—that the degree in which a son has been passed over is not valid—is not universally true, he says: for if in the first degree the son has been instituted heir, he ought not to be disinherited by the substituted persons; and therefore, if the son and Titius have been instituted heirs, and Maevius has been substituted to Titius, with Titius omitting the inheritance, Maevius can enter upon it, although the son has not been disinherited in the second degree.
Si quis ita scripserit: " ille, quem scio ex me natum non esse, exheres esto", hanc exheredationem ita nullius momenti esse ait, si probetur ex eo natus: non enim videri quasi filium exheredatum esse. cum elogium pater, cum filium exheredaret, proposuisset et adiecisset propter eam causam exheredare, probaturque patrem circa causam exheredationis errasse.
If someone should write thus: "let that man, whom I know not to have been born from me, be disinherited," he says that this disinheritance is thus of no moment if it is proved that he was born from him: for he does not seem, as it were, to have been disinherited as a son. Since the father, when he was disinheriting the son, had set forth the clause and had added that he was disinheriting for that cause, and it is proved that the father erred concerning the cause of the disinheritance.
Si filius heres institutus sit omisso postumo filioque substitutus nepos ex eo sit, si interim moriatur filius, postumo non nato nepotem tam patri quam avo suum heredem futurum. quod si nemo filio substitutus sit et solus ipse institutus sit, tunc quia eo tempore, quo is moriatur, certum esse incipit neminem ex eo testamento heredem fore, ipse filius intestato patri heres existet: sicut evenire solet, cum sub ea condicione quae in ipsius potestate erit, filius heres institutus, prius quam ei pareret, moriatur.
If a son has been instituted heir, the posthumous having been omitted, and the son substituted, and there is a grandson from him, if in the meantime the son dies, the posthumous not having been born, the grandson will be the own heir both to his father and to his grandfather. But if no one has been substituted to the son and he alone has been instituted, then, because at the time when he dies it begins to be certain that no one will be heir from that testament, the son himself will be heir to his father intestate; just as is wont to happen when, under that condition which will be in his own power, the son, instituted heir, dies before she bears him a child.
Cum quidam filiam ex asse heredem scripsisset filioque, quem in potestate habebat, decem legasset, adiecit " et in cetera parte exheres mihi erit", et quaereretur, an recte exheredatus videretur, scaevola respondit non videri, et in disputando adiciebat ideo non valere, quoniam nec fundi exheres esse iussus recte exheredaretur, aliamque causam esse institutionis, quae benigne acciperetur: exheredationes autem non essent adiuvandae.
When a certain man had appointed his daughter heir as to the whole share, and had bequeathed ten to his son, whom he had in his power, he added, "and as to the remaining part he shall be disinherited from me"; and when it was asked whether he seemed to have been rightly disinherited, scaevola replied that he did not seem so, and in arguing he added that for that reason it was not valid, since not even one ordered to be disinherited of a farm would be rightly disinherited; and that the case of institution was different, which was to be received benignly, whereas disinheritances were not to be aided.
Filio, quem pater post emancipationem a se factam iterum adrogavit, exheredationem antea scriptam nocere dixi: nam in omni fere iure sic observari convenit, ut veri patris adoptivus filius numquam intellegatur, ne imagine naturae veritas adumbretur, videlicet quod non translatus, sed redditus videretur: nec multum puto referre, quod ad propositum attinet, quod loco nepotis filium exheredatum pater adrogavit.
To a son whom the father, after an emancipation effected by himself, then adrogated again, I said that the previously written exheredation would be operative against him; for it is proper to be observed in almost the whole of the law thus, that one is never understood to be an adoptive son of his true father, lest the truth be overshadowed by an image of nature—namely, because he would seem not transferred but returned: nor do I think it makes much difference, as regards the point at issue, that the father adrogated, in the place of a grandson, the son who had been exheredated.
Titius testamento heredem instituit et filium habens sic exheredationem posuit: " ceteri omnes filii filiaeque meae exheredes sunto". paulus respondit filium recte exheredatum videri. postea consultus, an videatur exheredatus, quem pater putavit decessisse, respondit filios et filias nominatim exheredatos proponi: de errore autem patris, qui intercessisse proponitur, apud iudicem agi oportere.
Titius appointed an heir by will, and, having a son, thus set the disinheritance: " all the rest of my sons and daughters let be disinherited." Paulus responded that the son is rightly considered disinherited. Later, when consulted whether he is to be considered disinherited whom the father supposed to have died, he answered: sons and daughters should be set forth as disinherited by name; but as to the father’s error, which is alleged to have intervened, it ought to be dealt with before the judge.
Lucius titius cum suprema sua ordinaret in civitate et haberet neptem ex filia praegnatem rure agentem, scripsit id quod in utero haberet ex parte heredem: quaero, cum ipsa die, qua titius ordinaret testamentum in civitate hora diei sexta, eodem die albescente caelo rure sit enixa maevia masculum, an institutio heredis valeat, cum, quo tempore scriberetur testamentum, iam editus esset partus. paulus respondit verba quidem testamenti ad eum pronepotem directa videri, qui post testamentum factum nasceretur: sed si, ut proponitur, eadem die qua testamentum factum est neptis testatoris antequam testamentum scriberetur enixa esset, licet ignorante testatore, tamen institutionem iure factum videri recte responderi.
When Lucius Titius was arranging his last dispositions in the city and had a granddaughter by his daughter, pregnant and living in the country, he wrote that that which she had in the womb be heir in part. I ask, since on the very day on which Titius was ordering his testament in the city at the sixth hour of the day, on that same day, with the sky whitening, in the country Maevia brought forth a male, whether the institution of an heir is valid, since at the time when the testament was being written the birth had already been brought forth. Paulus responded that the words of the testament seem directed to that great‑grandson who would be born after the testament was made; but if, as proposed, on the same day on which the testament was made the testator’s granddaughter, before the testament was written, had been delivered, although the testator was unaware, nevertheless it is correctly answered that the institution appears to have been lawfully made.
Filius a patre, cuius in potestate est, sub condicione, quae non est in ipsius potestate, heres institutus et in defectum condicionis exheredatus decessit pendente etiam tunc condicione tam institutionis quam exheredationis. dixi heredem eum ab intestato mortuum esse, quia dum vivit, neque ex testamento heres neque exheredatus fuit. herede autem scripto ex parte filio coheres post mortem filii institui potest.
A son by his father, in whose power he is, having been instituted heir under a condition which is not in his own power, and exheredated in default of the condition, died while the condition was still pending, both of the institution and of the exheredation. I said that he is succeeded by an heir by intestacy, because while he lived he was neither heir under the testament nor exheredated. But with the son written heir to a share, a coheir can be instituted after the son’s death.
Filius familias miles de castrensi peculio fecit testamentum habens filium in eiusdem potestate. cum militare desisset, patre eodemque avo defuncto quaesitum est, an rumpetur eius testamentum. non quidem adoptavit nec hodie ei natus est filius nec priore subducto de potestate suo herede ulterior successit in proximum locum: sed tamen in potestate sua habere coepit, quem non habebat simulque pater familias factus est et filius sub eius reccidit potestate: rumpetur ergo testamentum.
A filius familias, a soldier, made a testament from his castrense peculium, having a son under the same potestas. When he had ceased to serve as a soldier, his father—and the same man his grandfather—having died, the question was raised whether his testament would be ruptured. He did not, to be sure, adopt, nor has a son been born to him today, nor, the prior heir having been withdrawn from potestas, did any further heir succeed into the next place: but nevertheless he began to have in his own potestas one whom he had not had, and at the same time he became paterfamilias, and the son fell back under his power: therefore the testament will be ruptured.
Si quis eo tempore, quo nondum eius uxor esse posset, testator natum ex ea scripsit heredem, an postea contracto licito matrimonio natus heres ex testamento esse possit, quaeritur: veluti si scribas hodie heredem, qui tibi ex titia natus erit, quando titia ancilla vel minor annis viginti quinque ea, cuius pater tuus tutelam administravit aut tutor tu ipse fuisti, postea titia uxor iusta tibi fuerit vel libertatem adepta aut tempore annorum viginti quinque et utilis anni et rationum allegatione, an natus heres esse possit? nemo certo dubitabit ex titia, quae tunc propter tenorem aetatis uxor duci non potuit, quando testamentum fiebat, natum postea ea uxore ducta heredem esse posse. et generaliter nato post testamentum heredi scripto aditus est ad hereditatem, in qualicumque statu testamenti faciendi tempore fuit quae postea testatori civiliter nupta est.
If, at a time when she could not yet be his wife, the testator wrote as heir a child to be born from her, the question is asked whether, after a licit matrimony has later been contracted, a child born can be heir under the testament: for example, if you write today as heir the one who will be born to you from Titia, when Titia is a slave, or under twenty-five years of age, or she whose tutelage your father administered, or you yourself were the tutor, and afterwards Titia has become your lawful wife, either having obtained liberty, or after the time of twenty-five years and of the “useful year” and upon the submission of accounts—whether the child born can be heir? No one will doubt that from Titia, who then, on account of the tenor of her age, could not be taken as a wife when the testament was being made, a child born afterwards, she having been taken as wife, can be heir. And, generally, to one born after the testament and written as heir, access to the inheritance is granted, in whatever status she was at the time of making the testament who afterwards was civilly married to the testator.
Num si et filius et nepos vivat, concipere " utrisque mortuis vivo se, tunc qui pronepos nasceretur?" quod similiter admittendum est, ita sane, si prius nepos, deinde filius decederet, ne successione testamentum rumperetur.
Whether, if both the son and the grandson are alive, one could frame: " with both dead, while he himself is alive, then he who would be born as great-grandson?"—which likewise is to be admitted, provided, of course, that first the grandson, then the son should die, lest by succession the testament be broken.
for these cases, namely, and all the ones by which his proper heir would be born after the death, to wit, of the grandfather, do not pertain to the Lex Vellea ^ Vellaea^: but according to the sense of the Lex Vellea ^ Vellaea^ even these things are to be admitted, so that, by similarity to death, the remaining cases should be admitted.
Quid si qui filium apud hostes habebat testaretur? quare non induxere, ut, si antea quam filius ab hostibus rediret quamvis post mortem patris decederet, tunc deinde nepos vel etiam adhuc illis vivis post mortem scilicet avi nasceretur, non rumperet? nam hic casus ad legem velleam ^ vellaeam^ non pertinet.
What if someone who had a son among the enemy were to make a testament? Why did they not introduce that, if before the son returned from the enemy he should die—although after the father’s death—then thereafter, if a grandson should be born, or even, while those were still alive, namely after the death of the grandfather, it would not be broken? For this case does not pertain to the Lex Vellea ^Vellaea^.
Therefore it is better that, in a utility of this sort, especially after the Vellean ^ Vellaean^ law, which has also taken away many cases of rupture, interpretation be admitted, so that one instituting as heir a grandson who would be born as his own after his death may be seen to have instituted rightly; in whatever cases a grandson born after the death would be his own and, being pretermitted, would break the testament: and even if, in general terms, " quidquid sibi liberorum natum erit post mortem" or " quicumque natus fuerit" has been instituted, if one who is his own should be born.
Si eius, qui filium habeat et nepotem ex eo instituat, nurus praegnas ab hostibus capta sit ibique vivo pariat, mox ille post mortem patris atque avi redeat, utrum hic casus ad legem velleam ^ vellaeam^ respiciat an ad ius antiquum aptandus sit, possitque vel ex iure antiquo vel ex vellea ^ vellaea^ institutus non rumpere? quod quaerendum est, si iam mortuo filio pronepotem instituat redeatque mortuo. sed cum testamentum ab eo non rumpitur, nihil refert, utrum ex iure antiquo an ex lege vellea ^ vellaea^ excludatur.
If, in the case of a man who has a son and appoints as heir a grandson from him, his daughter-in-law, while pregnant, is captured by the enemy and there, with him still alive, gives birth, and soon that child returns after the death of his father and grandfather, the question is whether this case should look to the Vellean ^ vellaean^ law or be adapted to the ancient law, and whether he, instituted either under the ancient law or under the Vellean ^ vellaean^, can avoid breaking the will. The same must be asked if, the son having already died, he appoints a great-grandson, and he returns after the testator’s death. But since the testament is not broken by him, it makes no difference whether he is excluded under the ancient law or under the Vellean ^ vellaean^ law.
Forsitan addubitet quis, an istis casibus si nepos post testamentum nascatur vivo patre suo, deinde ex eo concipiatur, isque vivo patre deinde avo nascatur, an non potuerit heres institui, quia pater ipsius non recte institutus esset. quod minime est expavescendum: hic enim suus heres nascitur et post mortem nascitur.
Perhaps someone may doubt whether, in these cases, if a grandson is born after the testament while his own father is alive, then from him one is conceived, and he is born with his father alive and thereafter after the grandfather, whether he could not be instituted heir, because his father would not have been rightly instituted. This is by no means to be dreaded: for this person is his own heir and is born after death.
In omnibus his speciebus illud servandum est, ut filius dumtaxat, qui est in potestate, ex aliqua parte sit heres institutus: nam frustra exheredabitur post mortem suam: quod non esse necessario in eo filio, qui apud hostes est, si ibi decedat et in nepote certe et pronepote, quorum si liberi heredes instituantur, institutionem numquam exigemus, quia possunt praeteriri.
In all these cases this must be observed, that the son at least, who is in his power, be instituted heir to some share: for he would be exheredated in vain after his own death; which is not necessary in the case of that son who is among the enemy, if he dies there; and certainly in the case of a grandson and great-grandson, for whom, if their parent be instituted heir, we shall never require an institution, because they can be passed over.
Et videtur primum caput eos spectare, qui, cum nascerentur, sui heredes futuri essent. et rogo, si filium habeas et nepotem nondum natum tantum ex eo heredem instituas, filius decedat, mox vivo te nepos nascatur? ex verbis dicendum est non rumpi testamentum, ut non solum illud primo capite notaverit, si nepos, qui eo tempore instituatur, quo filius non sit, verum et si vivo patre nascatur: quid enim necesse est tempus testamenti faciendi respici, cum satis sit observari id tempus quo nascitur?
And it seems the first head concerns those who, when they are born, would be heirs in their own right (sui heredes). And I ask: if you have a son and appoint as heir only a grandson not yet born from him, the son dies, and soon thereafter, while you are alive, the grandson is born? From the words it must be said that the testament is not broken, since the first head has noted not only this—if a grandson is instituted at a time when the son does not exist—but also if he is born while his father is alive: for what need is there to have regard to the time of making the testament, since it is enough to observe the time at which he is born?
Etiam si vovente parente vivo nascantur, sequenti parte succedentes in locum liberorum non vult rumpere testamentum: et ita interpretandum est, ut, si et filium et nepotem et pronepotem habeas, mortuis utrisque pronepos institutus succedens in sui heredis locum non rumpat. et bene verba se habent " si quis ex suis heredibus suus heres esse desierit" ad omnes casus pertinentia, quos supplendos in galli aquili ^ aquilii^ sententia diximus: nec solum, si nepos vivo patre decedat, nec succedens pronepos avo mortuo rumpat, sed et si supervixit patri ac decedat, dummodo heres institutus sit aut exheredatus.
Even if they are born while the parent who is making the vow is alive, he does not wish the testament to be broken by those succeeding in the next degree into the place of children; and it is to be interpreted thus, that if you have both a son and a grandson and a great‑grandson, when the first two have died, the great‑grandson, having been instituted, succeeding into the place of a suus heres, does not break it. And the words are well framed, “if any of his sui heirs has ceased to be a suus heres,” as pertaining to all the cases which we said must be supplied according to the opinion of Gallus Aquilius: and not only, if the grandson dies while his father is alive, does the great‑grandson succeeding, when the grandfather has died, not break it, but also if he has outlived his father and then dies, provided that he has been instituted heir or disinherited.
Videndum, num hac posteriore parte " si quis ex suis heredibus suus heres esse desierit, liberi eius" et cetera " in locum suorum sui heredes succedunt", possit interpretatione induci, ut, si filium apud hostes habens nepotem ex eo heredem instituas, non tantum si vivo te filius decedat, sed etiam post mortem, antequam ab hostibus reversus fuerit, succedendo non rumpet: nihil enim addidit, quo significaret tempus: nisi quod, licet audenter, possis dicere vivo patre hunc suum heredem esse desisse, licet post mortem decedat, quia nec redit nec potest redire.
It must be considered whether by interpretation this latter clause—“if any one of his own heirs has ceased to be his own heir, his children,” and so on, “succeed in the place of their parents as their own heirs”—can be brought in so that, if, having a son among the enemy, you appoint as heir a grandson from him, then not only if the son dies while you are alive, but also after your death, before he has returned from the enemy, by succeeding he will not rupture the testament: for nothing was added to indicate a time; except that, albeit boldly, you can say that, while his father is alive, he has ceased to be his own heir, although he dies after his father’s death, because he neither returns nor can return.
Ille casus in difficili est, si filium habeas et nepotem nondum natum instituas isque nascatur vivo patre suo ac mox pater decedat: non enim suus heres est tempore quo nascatur nec posteriori alii succedendo prohiberi videtur rumpere quam qui iam natus erit. denique et superiore capite ut liceat institui nondum natos, qui cum nascentur sui erunt, permitti, posteriore capite non permittit institui, sed vetat rumpi neve ob eam rem minus ratum esset, quod succedit. porro procedere debet, ut utiliter sit institutus: quod nullo iure potuit qui nondum natus erat.
That case is a difficult one, if you have a son and you institute a grandson not yet born, and he is born while his father is alive and soon the father dies: for he is not his own heir at the time when he is born, nor does he seem, by succeeding another later, to be prevented from breaking it any more than one who shall already have been born. Finally, also in the earlier clause it is permitted that those not yet born be instituted who, when they are born, will be their own heirs; in the later clause it does not permit them to be instituted, but it forbids the breaking, and that on that account that which succeeds should be any the less valid. Moreover, it ought to proceed that he has been usefully instituted: which by no law could the one who was not yet born.
Inter cetera, quae ad ordinanda testamenta necessario desiderantur, principale ius est de liberis heredibus instituendis vel exheredandis, ne praeteritis istis rumpatur testamentum: namque filio qui in potestate est praeterito inutile est testamentum.
Among the other things that are necessarily required for ordering testaments, the principal law concerns children being instituted as heirs or disinherited, lest, if these are passed over, the testament be broken: for indeed a testament is of no effect if a son who is in potestas has been passed over.
Testamentum aut non iure factum dicitur, ubi sollemnia iuris defuerunt: aut nullius esse momenti, cum filius qui fuit in patris potestate praeteritus est: aut rumpitur alio testamento, ex quo heres existere poterit, vel adgnatione sui heredis: aut in irritum constituitur non adita hereditate.
A testament is said either to have been not made according to law, when the solemnities of the law were lacking: or to be of no moment, when a son who was in the father’s power has been passed over: or it is broken by another testament, from which an heir can arise, or by the agnation of a “suus heir”: or it is set into nullity with the inheritance not having been entered upon.
Nominatim autem exheredatus postumus videtur, sive ita dixerit: " quicumque mihi nasceretur", sive ita: " ex seia", sive ita: " venter exheres esto". sed et si dixerit: " postumus exheres esto", natus vel post mortem vel vivo testatore non rumpet.
But a posthumous child is considered expressly disinherited, whether he has said thus: " quicumque mihi nasceretur" (" whoever might be born to me"), or thus: " ex seia" (" from Seia"), or thus: " venter exheres esto" (" let the womb be disinherited"). But even if he has said: " postumus exheres esto" (" let the posthumous child be disinherited"), the child, whether born after his death or while the testator is alive, will not rupture the testament.
Licet autem postumus praeteritus adgnascendo rumpat, tamen interdum evenit, ut pars testamenti rumpatur: ut puta si proponas a primo gradu postumum exheredatum, a secundo praeteritum: nam hic primus gradus valet, secundus ruptus est.
Although a posthumous child, if passed over, by being born breaks the testament, nevertheless it sometimes happens that a part of the testament is broken: for instance, if you suppose in the first degree the posthumous to have been disinherited, in the second to have been passed over; for here the first degree is valid, the second is broken.
Nam et si sub condicione sit heres institutus quis, a quo postumus non est exheredatus, tamen pendente condicione rumpitur gradus, ut et iulianus scripsit: sed et si sit ei substitutus quis, etiam deficiente condicione primi gradus non admittetur substitutus, a quo scilicet postumus exheredatus non est. puto igitur existente quidem condicione primi gradus postumo potius locum fore: post defectum autem condicionis natus postumus gradum non rumpit, quia nullus est. rumpendo autem testamentum sibi locum facere postumus solet, quamvis filius sequentem gradum, a quo exheredatus est, patiatur valere.
For even if someone has been instituted heir under a condition, by whom a posthumous child has not been exheredated, nevertheless, while the condition is pending, the grade is broken, as Julian also wrote; and even if someone has been substituted to him, even with the condition of the first grade failing, the substitute will not be admitted, since by him, to be sure, the posthumous has not been exheredated. I think, therefore, that with the condition of the first grade existing, there will rather be place for the posthumous; but after the failure of the condition, a posthumous born does not break the grade, because there is none. Moreover, by breaking the testament the posthumous is wont to make room for himself, although he allows the son of the following grade, by whom he has been exheredated, to stand valid.
Si quis filio exheredato nuru praegnate relicta decesserit et extraneum sub condicione instituerit et pendente condicione post mortem patris vel deliberante herede instituto de adeunda hereditate exheredatus filius decesserit et nepos fuerit natus, an rumpat testamentum? et dicemus testamentum non rumpi, cum nec exheredari huiusmodi nepos deberet ab avo, quem pater praecedebat. plane si forte institutus omiserit hereditatem, hunc avo suum futurum heredem ab intestato non dubitatur.
If someone, his son exheredated (disinherited) and his daughter-in-law left pregnant, has died and has instituted a stranger under a condition, and, while the condition is pending after the father’s death, or while the instituted heir is deliberating about entering upon the inheritance, the disinherited son has died and a grandson has been born—does he break the testament? And we shall say that the testament is not broken, since neither ought a grandson of this sort to be exheredated by the grandfather, whom the father was preceding (i.e., predeceased). Clearly, if by chance the instituted [heir] should omit the inheritance, there is no doubt that this grandson, his grandfather’s own, will be the heir ab intestato.
Each proceeds on its own proper grounds: for by being born after, he breaks it—namely, one whom no one preceded at the time of death; but in intestacy he succeeds the one to whom, before him, the inheritance has not been delated. And it is clear that the inheritance was not delated to the son, since he died while the instituted heir was deliberating about entering upon the inheritance. But this holds if at the time of the grandfather’s death the grandson was in the womb. Otherwise, if he was conceived afterward, Marcellus writes that he can be admitted neither as a suus nor as a grandson or cognate to the inheritance or to the bonorum possessio.
Sed si pater eius, qui mortis avi tempore in utero fuit, apud hostes erat, nepos iste patre in eadem causa decedente post mortem avi succedendo testamentum rumpet, quia supra scripta persona ei non obstat: nec enim creditur in rebus humanis fuisse, cum in ea causa decedat, quamquam captivus reversus patris sui iniustum faceret testamentum in eo praeteritus.
But if his father—who at the time of the grandfather’s death was in the womb—was among the enemy, this grandson, the father dying in the same condition, by succeeding after the grandfather’s death will break the testament, because the person above written does not stand in his way: for he is not believed to have been in human affairs, since he dies in that condition, although, had the captive returned, he would make his father’s testament unjust by being passed over in it.
Irritum fit testamentum, quotiens ipsi testatori aliquid contigit, puta si civitatem amittat per subitam servitutem, ab hostibus verbi gratia captus, vel si maior annis viginti venum se dari passus sit ad actum gerendum pretiumve participandum.
A testament becomes null whenever something happens to the testator himself, for instance if he loses citizenship through sudden servitude—having been captured, for example, by enemies—or if, being over 20 years of age, he has allowed himself to be sold, for the purpose of carrying out an act or of participating in the price.
Sed et si quis fuerit capite damnatus vel ad bestias vel ad gladium vel alia poena quae vitam adimit, testamentum eius irritum fiet, et non tunc cum consumptus est, sed cum sententiam passus est: nam poenae servus efficitur: nisi forte miles fuit ex militari delicto damnatus, nam huic permitti solet testari, ut divus hadrianus rescripsit, et credo iure militari testabitur. qua ratione igitur damnato ei testari permittitur, numquid et, si quod ante habuit factum testamentum, si ei permissum sit testari, valeat? an vero poena irritum factum reficiendum est?
But also, if someone has been condemned to capital punishment—either to the beasts or to the sword, or to another penalty which takes away life—his testament will become void, and not then when he has been consumed, but when he has undergone the sentence: for he is made a slave of the penalty; unless perhaps he was a soldier condemned for a military delict, for to such a one it is wont to be permitted to make a will, as the deified Hadrian wrote back in a rescript, and I believe he will testate by military law. By what reasoning, therefore, since to the condemned it is permitted to testate, is it perhaps also the case that, if he had a testament previously made, if it is permitted him to testate, it shall be valid? Or indeed must what has been made void by the penalty be repaired (restored)?
Eius qui deportatur non statim irritum fiet testamentum, sed cum princeps factum comprobaverit: tunc enim et capite minuitur. sed et si de decurione puniendo vel filio nepoteve praeses scribendum principi interlocutus est, non puto statim servum poenae factum, licet in carcere soleant diligentioris custodiae causa recipi. nec huius igitur testamentum irritum fiet, priusquam princeps de eo supplicium sumendum rescripserit: proinde si ante decesserit, utique testamentum eius valebit, nisi mortem sibi conscivit.
The testament of one who is deported will not at once become void, but when the emperor has approved the act; for then he is also diminished in civil status (capitis deminutio). But also, if, concerning a decurion to be punished or a son or grandson, the governor has rendered an interlocutory ruling that he must write to the emperor, I do not think he is immediately made a “slave of punishment” (servus poenae), although they are wont to be received into prison for the sake of more vigilant custody. Nor, therefore, will this man’s testament become void before the emperor has written in reply that punishment is to be exacted from him: accordingly, if he has died beforehand, his testament will assuredly be valid, unless he contrived death for himself.
for those who have preferred to die rather than to be condemned on account of conscience of a crime, the constitutions make their testaments void, although they die in the city: but if someone from tedium of life or impatience of adverse health or for ostentation, as certain philosophers, they are in such a case that their testaments are valid. Which distinction in a soldier’s testament the deified Hadrian also gave in a letter to Pomponius Falcon, namely, that if indeed on account of conscience of a military delict he preferred to die, his testament is void; but if from tedium or pain, let the testament be valid, or, if he died intestate, let these things be claimed by the cognates or, if there are none, by the legion.
Hi autem omnes, quorum testamenta irrita damnatione fieri diximus, si provocaverint, capite non minuuntur atque ideo neque testamenta quae antea fecerunt irrita fient et tunc testari poterunt: hoc enim saepissime est constitutum nec videbuntur quasi de statu suo dubitantes non habere testamenti factionem: sunt enim certi status nec ipsi de se interim incerti.
However, all those whose testaments we have said are rendered void by condemnation, if they have appealed, do not incur capitis deminutio; and therefore neither will the testaments which they made before become void, and then they will be able to make a testament: for this has been established very frequently; nor will they seem, as if doubting their own status, to lack testamentary capacity: for they are of a fixed status, nor are they themselves meanwhile uncertain about themselves.
Quid tamen si appellationem eius praeses non recepit, sed imperatori scribendo poenam remoratus est? puto hunc quoque suum statum interim retinere nec testamentum irritum fieri: nam, ut est oratione divi marci expressum, tametsi provocantis vel eius pro quo provocatur appellatio non fuerit recepta, poena tamen sustinenda est, quoad princeps rescripserit ad litteras praesidis et libellum rei cum litteris missum, nisi forte latro manifestus vel seditio praerupta factioque cruenta vel alia iusta causa, quam mox praeses litteris excusabit, moram non recipiant, non poenae festinatione, sed praeveniendi periculi causa: tunc enim punire permittitur, deinde scribere.
What, however, if the governor did not accept his appeal, but by writing to the emperor has deferred the penalty? I think that he too retains his own status in the meantime and that the testament does not become void: for, as is expressed in the oration of the deified Marcus, although the appeal of the appellant or of him on whose behalf the appeal is made has not been received, nevertheless the penalty is to be sustained—i.e., held in suspense—until the emperor shall have replied by rescript to the governor’s letters and to the defendant’s libellus sent with the letters, unless perhaps a manifest robber, or a sedition suddenly broken out and a bloody faction, or another just cause, which the governor will presently excuse by letters, do not admit delay—not from a hastening of punishment, but for the sake of forestalling danger: then indeed it is permitted to punish, and thereafter to write.
Quid si quis fuerit damnatus illicite poena non sumpta, an testamentum eius irritum fiat, videamus: ut puta decurio ad bestias an capite minuatur testamentumque eius irritum fiat? et non puto cum sententia eum non tenuerit. ergo et si quis eum, qui non erat iurisdictionis suae, damnaverit, testamentum eius non erit irritum, quemadmodum est constitutum.
What if someone has been condemned illicitly, with the penalty not taken, whether his testament becomes void—let us consider: for instance, a decurion to the beasts, or be reduced in (civil) status, and that his testament become void? I do not think so, since the sentence did not bind him. Therefore, also if someone has condemned a person who was not within his own jurisdiction, his testament will not be void, as has been established.
Quatenus tamen diximus ab hostibus capti testamentum irritum fieri, adiciendum est postliminio reversi vires suas recipere iure postliminii aut, si ibi decedat, lege cornelia confirmari. ergo et si quis damnatus capite in integrum indulgentia principis sit restitutus, testamentum eius convalescet.
However, insofar as we have said that the testament of one captured by enemies is rendered invalid, it must be added that, on returning by postliminy, it recovers its force by the right of postliminy; or, if he dies there, it is confirmed by the Lex Cornelia. Therefore, if anyone condemned on a capital charge has been restored in full by the indulgence of the princeps, his testament will become valid.
Filii familias veterani sui iuris morte patris facti testamentum irritum non fieri constat: nam quantum ad testandum de castrensi peculio pro patre familias habendus est, et ideo nec emancipatione irritum fieri militis vel veterani testamentum verum est.
It is established that the testament of a filius familias who is a veteran, having been made sui iuris by the death of his father, does not become void: for, in regard to making a will over the castrense peculium, he is to be regarded as a paterfamilias, and therefore it is true that neither by emancipation does the testament of a soldier or of a veteran become void.
Si miles iure civili testamentum fecerit et primo gradu heredem eum scripserit quem iure militari poterat, secundo eum quem communi iure potest, et post annum missionis decesserit, primus gradus irritus fiet et a secundo incipiet testamentum.
If a soldier has made a testament under civil law, and in the first degree has written as heir him whom he could under military law, in the second him whom he can under common law, and he has died after a year from his discharge, the first degree will be void and the testament will begin from the second.
Si binae tabulae proferantur diversis temporibus factae, unae prius, aliae ^ alia^ postea, utraeque tamen septem testium signis signatae, et apertae posteriores vacuae inventae sint, id est nihil scriptum habentes omnino, superius testamentum non est ruptum, quia sequens nullum est.
If two sets of tablets are produced, made at diverse times, the one earlier, the other ^ the other^ later, yet both sealed with the seals of seven witnesses, and the latter, when opened, are found empty, that is, having nothing written at all, the earlier testament is not broken, because the subsequent one is null.
Postumus praeteritus vivo testatore natus decessit: licet iuris scrupulositate nimiaque suptilitate testamentum ruptum videatur, attamen, si signatum fuerit testamentum, bonorum possessionem secundum tabulas accipere heres scriptus potest remque optinebit, ut et divus hadrianus et imperator noster rescripserunt, idcircoque legatarii et fideicommissarii habebunt ea, quae sibi relicta sint, securi. idem et circa iniustum et irritum testamentum erit dicendum, si bonorum possessio data fuerit ei, qui rem ab intestato auferre possit.
A posthumous child, passed over, born while the testator was alive, has died: although by legal scrupulosity and excessive subtlety the testament may seem broken, nevertheless, if the testament has been sealed, the instituted heir can receive possession of the goods according to the tablets and will secure the matter, as both the deified Hadrian and our emperor have rescripted; and for that reason the legatees and the fideicommissaries will have, safely, the things that have been left to them. The same is to be said also concerning an unjust and void testament, if possession of the goods has been given to him who could take the estate on intestacy.
Si paganus, qui habebat iam factum testamentum, aliud fecisset et in eo comprehendisset fidei heredis committere, ut priores tabulae valerent, omnimodo prius testamentum ruptum est: quo rupto potest quaeri, an vice codicillorum id valere deberet. et cum haec verba sint fideicommissi, et sine dubio universa, quae illic scripta sunt, in causa fideicommissi erunt, non solum legata et fideicommissa, sed et libertates et heredis institutio.
If a pagan, who already had a will made, had made another and in it had included to commit to the faith of the heir that the prior tablets should be valid, in every way the earlier testament is broken: that being broken, it can be asked whether it ought to be valid in the stead of codicils. And since these words are of a fideicommissum, without doubt all the things which are written there will be on the footing of a fideicommissum, not only legacies and fideicommissa, but also manumissions and the institution of the heir.
Postumorum loco sunt et hi, qui in sui heredis loco succedendo quasi adgnascendo fiunt parentibus sui heredes. ut ecce si filium et ex eo nepotem neptemve in potestate habeam, quia filius gradu praecedit, is solus iura sui heredis habet, quamvis nepos quoque et neptis ex eo in eadem potestate sint: sed si filius meus me vivo morietur aut qualibet ratione exeat de potestate mea, incipit nepos neptisve in eius loco succedere et eo modo iura suorum heredum quasi adgnatione nanciscuntur. ne ergo eo modo rumpat mihi testamentum, sicut ipsum filium vel heredem instituere vel exheredare nominatim debeo, ne non iure faciam testamentum, ita et nepotem neptemve ex eo necesse est mihi vel heredem instituere vel exheredare, ne forte me vivo filio mortuo succedendo in locum eius nepos neptisve quasi adgnatione rumpat testamentum: idque lege iunia vellea provisum est.
In the place of posthumous persons are also those who, by succeeding in the place of a sui-heir, as it were by being adgnate (adgnascendo), become sui-heirs to their parents. For example, if I have a son, and from him a grandson or granddaughter, under my power, since the son precedes in degree, he alone has the rights of a sui-heir, although the grandson and the granddaughter from him are in the same power; but if my son dies while I am alive or in any manner whatsoever goes out of my power, the grandson or granddaughter begins to succeed in his place, and in that way they acquire the rights of sui-heirs, as it were by adgnation. Therefore, lest he in this way break my testament, just as I must either institute the son as heir or disinherit him by name, lest I make a testament not according to law, so also it is necessary for me to institute as heir or to disinherit the grandson or granddaughter from him, lest perhaps, upon the son having died while I am alive, by succeeding into his place the grandson or granddaughter, as it were by adgnation, should break the testament: and this is provided by the Lex Iunia Vellea.
Qui uxorem praegnatem habebat, in hostium potestatem pervenit: quaero, filio nato quo tempore testamentum in civitate factum rumpatur? et si filius ante moriatur quam pater, an scripti heredes hereditatem habituri sint? respondi: non puto dubium esse, quin per legem corneliam, quae de confirmandis eorum testamentis, qui in hostium potestate decessissent, lata est, nato filio continuo eius testamentum, qui in hostium potestate sit, rumpatur: sequitur ergo, ut ex eo testamento hereditas ad neminem perveniat.
He who had a pregnant wife fell into the power of the enemy: I ask, when a son is born, at what time is the will made in the city broken? and if the son dies before the father, whether the instituted heirs are going to have the inheritance? I replied: I do not think there is a doubt that, by the Lex Cornelia, which was enacted for confirming the testaments of those who had died in the power of the enemy, with a son born, immediately the testament of him who is in the power of the enemy is broken: it follows, therefore, that from that testament the inheritance comes to no one.
Cum in secundo testamento heredem eum qui vivit instituimus sive pure sive sub condicione ( si tamen condicio existere potuit, licet non exstiterit), superius testamentum erit ruptum. multum autem interest, qualis condicio posita fuerit: nam aut in praeteritum concepta ponitur aut in praesens aut in futurum: in praeteritum concepta ponitur veluti " si titius consul fuit": quae condicio si vera est, id est si titius consul fuit, ita est institutus heres, ut superius testamentum rumpatur ^ rumpatar^: tum enim ex hoc heres esset. si vero titius consul non fuit, superius testamentum non est ruptum.
when in a second testament we institute as heir one who is alive, whether purely or under a condition ( if indeed the condition could have come into existence, even if it did not come into existence), the earlier testament will be broken. but it makes much difference what sort of condition has been set: for it is set either conceived with reference to the past or to the present or to the future: conceived with reference to the past it is set, for example, " if titius was consul": which condition, if it is true, that is, if titius was consul, the heir is thus instituted, with the result that the earlier testament is broken ^ rumpatar^: for then from this he would be heir. but if, however, titius was not consul, the earlier testament is not broken.
but if a condition is appended to the present time upon the instituted heir, for example, " if titius is consul", it has the same outcome: that, if he is, he can be heir and the earlier testament is broken; if he is not, neither can he be heir nor is the earlier testament broken. but as for conditions referred to the future, if they are possible—if they could have come to pass, even though they have not—they bring it about that the earlier testament is broken, even if they have not come to pass: but if they are impossible, for example, " titius, if he shall have touched the sky with his finger, let him be heir", it is held to be just as if the condition appended were not appended, since it is impossible.
Filio praeterito qui fuit in patris potestate neque libertates competunt neque legata praestantur, si praeteritus fratribus partem hereditatis avocavit: quod si bonis se patris abstinuit, licet suptilitas iuris refragari videtur, attamen voluntas testatoris ex bono et aequo tuebitur.
For a passed-over son who was in the father’s power, neither do manumissions belong nor are legacies to be supplied, if the passed-over one has reclaimed for his brothers a share of the inheritance: but if he has abstained from the father’s goods, although the subtlety of the law seems to oppose, nevertheless the will of the testator, on grounds of what is good and equitable, will be protected.
Si ego et titius instituti simus et a nobis postumus exheredatus sit, a substitutis nostris non sit exheredatus, titio defuncto ne ego quidem adire potero: iam enim propter instituti personam, a quo postumus exheredatus est, in cuius locum substitutus vocatur, a quo postumus exheredatus non est, ruptum est testamentum.
If titius and I have been instituted and the posthumous has been disinherited by us, but has not been disinherited by our substitutes, upon titius’s death not even I will be able to enter upon the inheritance: for now, on account of the person of the instituted heir by whom the posthumous was disinherited, in whose place the substitute is called, by whom the posthumous has not been disinherited, the testament is ruptured.
Lucius titius integra mente et valetudine testamentum fecit uti oportet, postea cum in valetudinem adversam incidisset, mente captus tabulas easdem incidit: quaero, an heredes his tabulis instituti adire possint hereditatem. respondit secundum ea quae proponerentur non ideo minus adiri posse.
Lucius Titius, with mind and health intact, made a testament as is proper; afterwards, when he had fallen into adverse health, being of unsound mind he cut those same tablets: I ask whether the heirs instituted by these tablets can enter upon the inheritance. He responded that, according to the matters proposed, it could none the less be entered upon for that reason.
Quae in testamento legi possunt, ea inconsulta deleta et inducta nihilo minus valent, consulto non valent: id vero quod non iussu domini scriptum inductum deletumve est, pro nihilo est. " legi" autem sic accipiendum non intellegi, sed oculis perspici quae sunt scripta: ceterum si extrinsecus intelleguntur, non videbuntur legi posse. sufficit autem, si legibilia sint inconsulto deleta sive ab ipso sive ab alio, sed nolentibus.
The things which can be read in a testament—those deleted and inserted without deliberation—are nonetheless valid; if done deliberately, they are not valid. But that which has been written, inserted, or deleted not by the master’s order is as nothing. " to be read" moreover is to be taken not as “to be understood,” but as “what has been written to be perceived by the eyes”: otherwise, if they are understood from outside, they will not be seen to be able to be read. It is sufficient, however, if they are legible though deleted without deliberation, whether by himself or by another, but with them unwilling.
Quod igitur incaute factum est, pro non facto est, si legi potuit: et ideo, etsi novissime, ut solet, testamento fuerit adscriptum: " lituras inductiones superductiones ipse feci", non videbitur referri ad ea quae inconsulto contigerunt. proinde et si inconsulto superscripsit induxisse se, manebunt et si ademit, non erunt adempta.
Therefore what has been done incautiously is as not done, if it could be read; and hence, even if, most recently, as is usual, there has been appended to the will: "erasures, insertions, overwritings I myself made," it will not be seen to be referred to those things which befell without deliberation. Accordingly, even if without deliberation he has superscribed that he inserted them, they will remain; and if he took them away, they will not be taken away.
Sed consulto quidem deleta exceptione petentes repelluntur, inconsulto vero non repelluntur, sive legi possunt sive non possunt, quoniam, si totum testamentum non exstet, constat valere omnia quae in eo scripta sunt. et si quidem illud concidit testator, denegabuntur actiones, si vero alius invito testatore, non denegabuntur.
But if the exception has been deleted deliberately, the claimants are repelled; if deleted unintentionally, they are not repelled, whether they can be read or cannot, since, even if the whole testament is not extant, it is agreed that everything written in it is valid. And if indeed the testator destroyed it, the actions will be denied; but if another did so against the testator’s will, they will not be denied.
Cancellaverat quis testamentum vel induxerat et si propter unum heredem facere dixerat: id postea testamentum signatum est. quaerebatur de viribus testamenti deque portione eius, propter quem se cancellasse dixerat. dicebam, si quidem unius ex heredibus nomen induxerit, sine dubio ceteram partem testamenti valere et ipsi soli denegari actiones: sed legata ab eo nominatim relicta debebuntur, si voluntas ea fuit testantis, ut tantum heredis institutio improbetur.
Someone had cancelled a testament, or had drawn lines through it, and had said that he did this on account of a single heir: afterward that testament was sealed. The question was raised about the force of the testament and about the portion of him on whose account he said he had cancelled. I used to say: if indeed he drew a line through the name of one of the heirs, without doubt the remaining part of the testament stands, and actions are denied to that one alone; but the legacies left by him by name will be owed, if such was the will of the testator, that only the institution of the heir be disapproved.
but if he has drawn a line through the name of the instituted heir and has left that of the substitute, the instituted will not have the emolument of the inheritance. But if he has drawn lines through all the names, as is proposed, and has added in writing that he did this because he had one heir whom he had taken offense at, I judge it makes much difference whether he wished to defraud that one only of the inheritance, or rather, on account of him, to invalidate the whole testament, so that although one furnished the cause of the striking‑through, yet it harmed all. And if indeed he wished the portion to be taken away from him alone, the striking‑through will harm the others in nothing, no more than if, wishing to strike through one heir, he has against his will also struck through another.
but if he thought the whole testament must be deleted on account of the evil desert of one, actions are denied to all; but whether an action ought to be denied to the legatees is a question. In ambiguity, however, it will have to be interpreted both that the legacies are owed and that the institution of the coheirs is not to be invalidated.
Proxime in cognitione principis cum quidam heredum nomina induxisset et bona eius ut caduca a fisco vindicarentur, diu de legatis dubitatum est et maxime de his legatis, quae adscripta erant his, quorum institutio fuerat inducta. plerique etiam legatarios excludendos existimabant. quod sane sequendum aiebam, si omnem scripturam testamenti cancellasset: nonullos opinari id iure ipso peremi quod inductum sit, cetera omnia valitura.
Quite recently, in the emperor’s hearing, when someone had challenged the names of the heirs and that his goods be claimed by the fisc as caducary, there was long doubt about the legacies, and especially about those legacies which had been written to those whose institution had been challenged. Many even thought that the legatees should be excluded. Which indeed I said ought to be followed, if he had canceled the entire writing of the testament; some think that by the law itself that which has been challenged is extinguished, all the rest to stand.
the judgment of Emperor Antoninus Augustus, when Pudens and Pollio were consuls. "Since Valerius Nepos, his intention having changed, both has scored through his testament and has inserted the names of heirs, the inheritance, according to the constitution of my deified father, does not seem to pertain to those who shall have been written." And, the advocates of the fisc having been called in, he said: "You have your own judges." Vibius Zeno said: "I ask, lord emperor, hear me patiently: what will you decree about the legacies?" Antoninus Caesar said: "Does it seem to you that he wished the testament to be valid, who inserted the names of heirs?" Cornelius Priscianus, advocate of Leo, said: "He inserted only the names of heirs." Calpurnius Longinus, advocate of the fisc, said: "No testament can be valid which has no heir." Priscianus said: "He manumitted certain persons and gave legacies." Antoninus Caesar, when all had been removed and he had deliberated, and had ordered that they be admitted again to the same place, said: "The present case seems to admit a more humane interpretation, namely, that we should think Nepos to have wished those provisions alone to be null which he inserted." He had inserted the name of the slave whom he had ordered to be free. Antoninus rescripted that he would nonetheless be free: which he evidently established by favor of liberty.
Pluribus tabulis eodem exemplo scriptis unius testamenti voluntatem eodem tempore dominus sollemniter complevit. si quasdam tabulas in publico depositas abstulit atque delevit, quae iure gesta sunt, praesertim cum ex ceteris tabulis quas non abstulit res gesta declaretur, non constituentur irrita. paulus notat: sed si, ut intestatus moreretur, incidit tabulas et hoc adprobaverint hi qui ab intestato venire desiderant, scriptis avocabitur hereditas.
By several tablets written in the same form, the master at the same time solemnly completed the will of a single testament. If he removed and erased certain tablets deposited in public custody, what has been done in law will not be constituted void, especially since from the other tablets which he did not remove the transaction is declared. Paulus notes: but if, so that he might die intestate, he cut the tablets, and those who desire to come ab intestato have proved this, the inheritance will be withdrawn from the writings.
Qui neque legaturus quid est neque quemquam exheredaturus, quinque verbis potest facere testamentum, ut dicat: " lucius titius mihi heres esto": haec autem scriptura pertinet ad eum qui non per scripturam testatur. qui poterit etiam tribus verbis testari, ut dicat: " lucius heres esto": nam et " mihi" et " titius" abundat.
He who is neither going to bequeath anything nor to disinherit anyone can make a testament with five words, by saying: " let lucius titius be my heir": moreover, this wording pertains to one who does not make his will by writing. He can even make a will with three words, by saying: " let lucius be heir": for both " my" and " titius" are superfluous.
Si autem sic scribat: " lucius heres", licet non adiecerit " esto", credimus plus nuncupatum, minus scriptum: et si ita: " lucius esto", tantundem dicimus: ergo et si ita: " lucius" solummodo. Marcellus non insuptiliter non putat hodie hoc procedere. divus autem pius, cum quidam portiones inter heredes distribuisset ita: " ille ex parte tota, ille ex tota" nec adiecisset " heres esto", rescripsit valere institutionem: quod et iulianus scripsit.
But if he should write thus: " lucius heir", although he has not added " be it so", we believe that more was nuncupated, less written; and if thus: " lucius be it so", we say the same; therefore even if thus: " lucius" only. Marcellus, not without subtlety, does not think this holds today. But the deified Pius, when someone had distributed portions among the heirs thus: " that one from the whole share, that one from the whole" and had not added " let him be heir", wrote back by rescript that the institution was valid; which Julianus also wrote.
Circa eos, qui ita heredes instituti sint: " ex partibus quas adscripsero", non putat Marcellus eos heredes nullis adscriptis partibus, quemadmodum si ita essent heredes instituti: " si eis partes adscripsero". sed magis est, ut sic utraque institutio accipiatur, si voluntas defuncti non refragatur: " ex quibus partibus adscripsero, si minus, ex aequis", quasi duplici facta institutione: quam sententiam celsus libro sexto decimo digestorum probat. aliter atque probat in illa institutione: " ex qua parte me titius heredem scripsit, seius heres esto": tunc enim si non est a titio scriptus, nec seius ab eo, nec immerito: hic enim creditur inesse condicio. sed Marcellus haec similia putat.
Concerning those who have been instituted heirs thus: "from the shares which I shall have assigned," Marcellus does not think that, if no shares are assigned, they are not heirs, as would be the case if they had been instituted thus: "if I shall assign shares to them." But rather, it is preferable that each institution be taken thus, if the will of the deceased does not gainsay it: "from such shares as I shall have assigned, if not, from equal shares," as though a double institution had been made: which opinion Celsus in the sixteenth book of the Digest approves. Differently from what he approves in that institution: "from the share by which Titius appointed me heir, let Seius be heir": for then, if he has not been appointed by Titius, neither is Seius by him, nor undeservedly: for here a condition is believed to be present. But Marcellus thinks these things are similar.
Potest autem interesse, utrum ita quis scribat: " ex his partibus quas adscripsi" an " adscripsero", ut superiori modo dicas nullis adscriptis partibus nullam esse institutionem: quomodo in illo Marcellus: " ex his partibus, ex quibus testamento matris scripti fuissent, heredes sunto", si intestata mater decesserit, hos non esse institutos.
It can, however, make a difference whether someone writes thus: " from those shares which I have assigned" or " I shall have assigned," so that on the earlier model you would say that, with no shares assigned, there is no institution: as in that passage in Marcellus: " from those shares, from which in the mother’s testament they would have been named, let them be heirs," if the mother has died intestate, that these are not instituted as heirs.
Si quis ita scripserit: " si titius heres erit, seius heres esto: titius heres esto", quasi quaevis condicio exspectatur titii aditio, ut seius heres fiat: et sane et iuliano et tertulliano hoc videtur.
If someone should write thus: "if Titius will be heir, let Seius be heir: let Titius be heir," it is as though, whatever the condition, the thing expected is Titius’s aditio (entry upon/acceptance of the inheritance), so that Seius may become heir; and indeed this seems so to both Julianus and Tertullianus.
Qui fideicommissam libertatem sub condicione accepit, potest ab herede pure cum libertate heres institui et non exspectata condicione libertatem et hereditatem consequitur et erit interim necessarius: et existente condicione voluntarius heres efficietur, ut non desinat heres esse, sed ut ius in eo mutetur successionis.
He who has received a fideicommissary liberty under a condition can be instituted heir by the heir purely, together with liberty; and, without waiting for the condition, he obtains liberty and the inheritance and will in the meantime be a necessary heir: and when the condition comes to pass, he will become a voluntary heir, not so that he ceases to be heir, but so that the right of succession in him is changed.
Aperturae tabularum dilatio necessarii heredis ius non mutat, ut solemus in substituto impuberis dicere: nam est relatum, si se adrogandum dederit substitutus impuberi defuncti filius, necessarium eum fore.
A postponement of the opening of the tablets does not alter the right of a necessary heir, as we are accustomed to say in the substitute of an impubes: for it has been reported that, if the son of the deceased, appointed as substitute to the impubes, should give himself to be adrogated, he will be a necessary heir.
Suus quoque heres sub condicione heres potest institui: sed excipiendus est filius, quia non sub omni condicione institui potest. et quidem sub ea condicione, quae est in potestate ipsius, potest: de hoc enim inter omnes constat. sed utrum ita demum institutio effectum habeat, si paruerit condicioni, an et si non paruerit et decessit?
One’s own heir too can be instituted as heir under a condition; but the son must be excepted, because he cannot be instituted under every condition. And indeed under that condition which is in his own power, he can: for about this it is agreed among all. But whether only then does the institution have effect, if he has complied with the condition, or also if he has not complied and has died?
Julianus thinks that a son instituted under such a condition, even if he does not comply with the condition, is removed; and therefore, if one so instituted has a coheir, he ought not to wait until the son complies with the condition—since, if by not complying with the condition he would make his father intestate, without doubt he would have to wait. This opinion seems probable to me: namely, that one instituted under a condition which is in his discretion does not make his father intestate.
Puto recte generaliter definiri: utrum in potestate fuerit condicio an non fuerit, facti potestas est: potest enim et haec " si alexandriam pervenerit" non esse in arbitrio per hiemis condicionem: potest et esse, si ei, qui a primo miliario alexandriae agit, fuit imposita: potest et haec " si decem titio dederit" esse in difficili, si titius peregrinetur longinquo itinere: propter quae ad generalem definitionem recurrendum est.
I think it is rightly to be defined generally: whether the condition was in one’s power or was not, is a matter of the power of fact: for even this " if he shall have reached Alexandria" can be not within his discretion by reason of the condition of winter: and it can be so, if it was imposed upon one who is at the first milestone from Alexandria: and also this " if he shall have given ten to Titius" can be difficult, if Titius is peregrinating on a long journey: on account of which one must resort to a general definition.
Sed et si filio sub condicione, quae in eius potestate est, herede instituto nepos sit substitutus sive extraneus, puto vivo filio non exstaturum heredem substitutum, post mortem vero exstaturum, nec necessariam a substituto filii exheredationem, cum et, si fuerit facta, frustra est: post mortem enim filii facta est, quam inutilem esse alias ostendimus: opinamur igitur filium, si sit institutus sub ea condicione et sit in eius potestate, non indigere exheredatione a sequentibus gradibus: alioquin et a coherede indigebit.
But also, if, for a son instituted heir under a condition which is in his power, a grandson is substituted or an extraneous person, I think that, while the son lives, the substituted heir will not stand, but after his death he will; nor is the son’s disinheritance by the substitute necessary, since even if it were done, it is in vain: for it is done after the son’s death, which we have shown elsewhere to be ineffectual. We therefore opine that the son, if he has been instituted under such a condition and it is in his power, does not need disinheritance by the following degrees; otherwise he would also need it from a coheir.
Si eiusmodi sit condicio, sub qua filius heres institutus sit, ut ultimo vitae eius tempore certum sit eam existere non posse et pendente ea decedat, intestato patri heres erit, veluti " si alexandriam pervenerit, heres esto": quod si etiam novissimo tempore impleri potest, veluti " si decem titio dederit, heres esto", contra puto.
If the condition under which a son has been instituted heir is of such a sort that, at the last moment of his life, it is certain that it cannot come to pass, and he dies while it is pending, he will be heir to his father on intestacy; for example, "if he reaches Alexandria, let him be heir": but if it can be fulfilled even at the very last moment, as in "if he gives ten to Titius, let him be heir", I think the contrary.
Solemus dicere media tempora non nocere, ut puta civis romanus heres scriptus vivo testatore factus peregrinus mox civitatem romanam pervenit: media tempora non nocent. servus alienus sub condicione heres scriptus traditus est servus hereditario, mox usucaptus ab extraneo: non est vitiata institutio.
We are wont to say that intermediate times do not harm; for instance, a Roman citizen who had been instituted heir, while the testator was still alive became a peregrine, and soon attained Roman citizenship: the intermediate times do not harm. A slave belonging to another, instituted heir under a condition, was delivered as an hereditary slave, and soon was usucapted by a stranger: the institution is not vitiated.
Sed si sit cum libertate institutus, an ei libertatis datio codicillis adimi possit, apud iulianum quaeritur. et putat in eum casum, quo necessarius fieret, ademptionem non valere, ne a semet ipso ei adimatur libertas: servus enim heres institutus a semet ipso libertatem accipit. quae sententia habet rationem: nam sicuti legari sibi non potest, ita nec a se adimi.
But if he has been instituted together with liberty, whether the grant of liberty to him can be taken away by codicils is inquired by Julian. And he thinks that in the case in which he would become a necessary heir, the ademption is not valid, lest liberty be taken from him by himself: for a slave instituted as heir receives liberty from himself. Which opinion has rationale: for just as it cannot be bequeathed to himself, so neither can it be taken away by himself.
Sed si non in corpore erravit, sed in parte, puta si, cum dictasset ex semisse aliquem scribi, ex quadrante sit scriptus, celsus libro duodecimo quaestionum, digestorum undecimo posse defendi ait ex semisse heredem fore, quasi plus nuncupatum sit, minus scriptum: quae sententia rescriptis adiuvatur generalibus. idemque est et si ipse testator minus scribat, cum plus vellet adscribere.
But if he erred not in the whole but in a part—say, if, when he had dictated that someone be written in for a half-share, he was written in for a quarter—Celsus, in book 12 of the Questions, book 11 of the Digest, says it can be defended that he will be heir for the half-share, as though more had been nuncupated, less written: which opinion is supported by general rescripts. And the same holds also if the testator himself writes less, when he wished to ascribe more.
Tantundem Marcellus tractat et in eo, qui condicionem destinans inserere non addidit: nam et hunc pro non instituto putat: sed si condicionem addidit dum nollet, detracta ea heredem futurum nec nuncupatum videri quod contra voluntatem scriptum est: quam sententiam et ipse et nos probamus.
Marcellus treats the same also in the case of one who, intending to insert a condition, did not add it: for he, too, considers this man as not instituted; but if he added the condition while he did not will it, with it removed he will be heir, nor is what was written against his will to be regarded as nuncupated: which opinion both he himself and we approve.
Si quis ita dixerit: " uter ex fratribus meis titio et maevio seiam uxorem duxerit, ex dodrante, uter non duxerit, ex quadrante heres esto", hic recte factam institutionem esse certum est: sed quis ex qua parte, incertum.
If someone has spoken thus: "whichever of my brothers, Titius and Maevius, shall have taken Seia as wife, let him be heir from three-quarters; whichever shall not have taken her, from one-quarter let him be heir," here it is certain that the institution has been rightly made: but which one from which share is uncertain.
Si duo sint heredes instituti, unus ex parte tertia fundi corneliani, alter ex besse eiusdem fundi, celsus expeditissimam sabini sententiam sequitur, ut detracta fundi mentione quasi sine partibus heredes scripti hereditate potirentur, si modo voluntas patris familias manifestissime non refragatur.
If two heirs are instituted, one for a third part of the Cornelian estate, the other for two-thirds of the same estate, Celsus follows Sabinus’s most expeditious opinion, that, with the mention of the estate removed, the heirs written as if without shares would obtain the inheritance, provided only that the will of the paterfamilias does not most manifestly oppose.
Si quis primum ex triente, secundum ex triente heredem instituerit et, si secundus heres non erit, tertium ex besse heredem scribat, hic secundo repudiante bessem habebit non solum iure substitutionis, sed et institutionis, id est trientem iure substitutionis, trientem iure institutionis.
If someone institutes the first as heir from a third, the second from a third, and, if the second should not be heir, writes the third as heir from two-thirds, then, the second repudiating, this one will have the two-thirds not only by the right of substitution but also of institution, that is, a third by the right of substitution, a third by the right of institution.
Si servus ex die libertatem acceperit et hereditatem pure, mox sit alienatus vel manumissus, videamus, an institutio valeat. et quidem si alienatus non esset, potest defendi institutionem valere, ut die veniente libertatis, quae hereditatem moratur, competente libertate et heres necessarius existat.
If a slave has received liberty to take effect from a day and an inheritance unconditionally, and soon is alienated or manumitted, let us see whether the institution is valid. And indeed, if he had not been alienated, it can be defended that the institution is valid, so that, the day of liberty arriving—which delays the inheritance—liberty accruing, he becomes a necessary heir.
Si alterius atque alterius fundi pro partibus quis heredes instituerit, perinde habebitur, quasi non adiectis partibus heredes scripti essent: nec enim facile ex diversitate pretium portiones inveniuntur: ergo expeditius est quod sabinus scribit, perinde habendum, ac si nec fundum nec partes nominasset.
If someone has instituted heirs for shares of one estate and of another, it will be held just as if the heirs had been written without the shares being added: for shares are not easily found on account of the diversity of price: therefore it is more expeditious, as Sabinus writes, to be held as if he had named neither the estate nor the shares.
Interdum haec adiectio " aeque heredes sunto" testatoris voluntatem exprimit, ut puta " primus et fratris mei filii aeque heredes sunto": nam haec adiectio declarat omnes ex virilibus partibus institutos, ut et labeo scripsit, qua detracta semissem fratris filii, semissem primus haberet.
Sometimes this addition " let them be equally heirs" expresses the testator’s will, for example: " let Primus and my brother’s son be equally heirs": for this addition declares that all are instituted from virile portions, as Labeo also wrote, and with this clause removed, the brother’s son would have a half, Primus a half.
Sed si duos ex asse heredes scripserit, alios ex duodecim unciis, an aeque distributio fiat, apud labeonem libro quarto posteriorum quaeritur. et putat labeo et illos ex semisse et hos, qui ex duodecim unciis scripti sunt, ex semisse heredes fore, cui sententiae adsentiendum puto.
But if he has appointed two heirs ex asse, and others ex duodecim unciis, whether an equal distribution is made is inquired by Labeo in the fourth book of the Later Works. And Labeo thinks that both the former and those who are written “from twelve unciae” will be heirs each from a half (semis), to which opinion I think assent should be given.
Si quis heredes ita instituit: " titius ex parte prima, seius ex parte secunda, maevius ex parte tertia, sulpicius ex parte quarta heredes sunto": aequae partes hereditatis ad institutos pertinebunt, quia testator appellatione numeris scripturae magis ordinem, quam modum partibus imposuisse videtur.
If someone thus appoints heirs: " titius for the first part, seius for the second part, maevius for the third part, sulpicius for the fourth part, let them be heirs": equal shares of the inheritance will pertain to the instituted heirs, because the testator, by the numerical appellation of the writing, seems to have imposed rather an order than a measure upon the shares.
Iulianus quoque libro trigesimo refert, si quis ita heredem scripserit: " titius ex parte dimidia heres esto: seius ex parte dimidia: ex qua parte seium institui, ex eadem parte sempronius heres esto", dubitari posse, utrum in tres semisses dividere voluit hereditatem an vero in unum semissem seium et sempronium coniungere: quod est verius, et ideo coniunctim eos videri institutos: sic fiet, ut titius semissem, hi duo quadrantes ferant.
Julian also, in the thirtieth book, reports that, if someone has thus written an heir: " Titius as to a half part, let be heir: Seius as to a half part: from the part in which I have instituted Seius, from that same part let Sempronius be heir," it can be doubted whether he wished to divide the inheritance into three half-shares (semisses) or indeed to conjoin Seius and Sempronius into one half-share (semis): which is truer, and therefore they seem to have been instituted jointly: thus it will come about that Titius takes a half-share (semis), and these two take quarters (quadrantes).
Idem eodem libro scripsit, si primus ex semisse, secundus ex semisse, si primus heres non erit, tertius ex dodrante substitutus sit, facti quidem quaestionem esse: verum recte dicitur, si quidem primus adierit, aequales partes habituros, si repudiaverit, quindecim partes futuras, ex quibus novem quidem laturum tertium, sex secundum:
The same man wrote in the same book: if the first (heir) is from a half, the second from a half, and if the first will not be heir, let a third be substituted from a dodrans (three-quarters), there is indeed a question of fact; but it is rightly said that, if indeed the first should enter upon the inheritance, they will have equal shares; if he should repudiate, there will be fifteen parts, of which the third will take nine, the second six:
Unde idem tractat, si duos ex undecim, duos sine parte scripsit, mox unus ex his, qui sine parte fuerunt, repudiaverit, utrum omnibus semuncia an ad solum sine parte scriptum pertineat: et variat. sed servius omnibus adcrescere ait, quam sententiam veriorem puto: nam quantum ad ius adcrescendi non sunt coniuncti, qui sine parte instituuntur: quod et celsus libro sexto decimo digestorum probat.
Whence he likewise discusses: if, out of eleven, he wrote two without a share, then one of those who were without a share repudiated, whether a semuncia accrues to all, or pertains to the one alone who was written without a share: and the opinion varies. But Servius says it accrues to all, which view I think truer: for, as regards the right of accretion, those who are instituted without a share are not conjoined; which Celsus also approves in the sixteenth book of the Digest.
Sed si expleto asse duo sine partibus scribantur, utrum in singulos asses isti duo an in unum assem coniungantur, quaeritur. et putat labeo, et verius est, in unum assem venire: nam et si unus sine parte, duo coniunctim sine parte instituantur, non tres trientes fieri celsus libro sexto decimo scripsit, sed duos semisses.
But if, the as having been completed, two without shares are written, the question is whether these two are joined to individual asses or are conjoined to one as. And Labeo thinks, and more truly, that they come into one as: for even if, with one heir without a share, two are instituted jointly without a share, Celsus wrote in book 16 that not three thirds (trientes) are made, but two halves (semisses).
Sabinus: quaesitum est, si plus asse pater familias distribuisset et aliquem sine parte fecisset heredem, utrumne is assem habiturus foret an id dumtaxat, quod ex dupundio deesset. et hanc esse tolerabilissimam sententiam puto, ut eadem ratio in dupondio omnique re deinceps quae in asse servetur. paulus: eadem ratio est in secundo asse quae in primo.
Sabinus: it has been asked, if the paterfamilias had distributed more than one as and had made someone heir without a share, whether he would have an as, or only just that which was lacking from the dupondius. And I think this to be the most tolerable opinion: that the same rule be observed in the dupondius and in every matter thereafter as is observed in the as. paulus: the same rule applies in the second as as in the first.
Ex facto etiam agitatum pomponius et arrianus referunt ^ deferunt^, si quis vacua parte relicta ita instituerit: " si mihi seius heres non erit", quem non instituerat, " sempronius heres esto", an hic occupare possit vacantem portionem. et pegasus quidem existimat ad eam partem admitti: aristo contra putat, quia huic pars esset data, quae nulla esset: quam sententiam et iavolenus probat et pomponius et arrianus et hoc iure utimur.
from an actual case too pomponius and arrianus report ^ bring forward^ that, if someone, a vacant share having been left, has instituted thus: " if seius will not be my heir", whom he had not instituted, " sempronius shall be heir," whether this man can occupy the vacant portion. and pegasus indeed considers that he is to be admitted to that share: aristo, on the contrary, thinks not, because for this man a share would be given which would be none at all: which opinion both iavolenus approves and pomponius and arrianus, and we use this law.
Si iam mortuo quadrans, alii dodrans datus sit et alius sine parte scriptus sit, labeo eum, qui sine parte heres institutus sit, alterum assem habiturum et hanc mentem esse testantis: quod et iulianus probat et verum est.
If a quarter has been given to someone already dead, and three-quarters to another, and another has been written in without a share, Labeo says that he who has been instituted heir without a share will have the other as (i.e., the remainder of the unit), and that this was the testator’s intention: which Julian also approves, and it is true.
Sed si bonorum possessionem non admittat, sed condicionem trahat, cui facile parere possit, veluti " si servum quem in potestate habeat manumiserit" nec manumittat, hic praetoris erunt partes, ut imitetur edictum suum illud, quo praefinit tempus, intra quod adeatur hereditas.
But if he does not admit possession of the goods, but drags out the condition, which he can easily obey, for example, "if he manumits a slave whom he has in his power," and he does not manumit, here it will be the praetor’s part to imitate that edict of his by which he pre-fixes a time within which the inheritance is to be entered upon.
Item si condicioni heres parere non poterit, quam in sua potestate non habebit, veluti institutione collata in alterius factum aut quendam casum, " si ille" puta " consul factus fuerit", tunc postulantibus creditoribus constituet praetor, nisi intra certum tempus hereditas optigerit aditaque fuerit, se bona defuncti creditoribus possidere iussurum et interim quae urguebunt per procuratores distrahi iussurum.
Likewise, if the heir cannot comply with a condition which he does not have in his own power, as where the institution is tied to another’s act or to some contingency, " if that man," say, " consul shall have been made," then, at the request of the creditors, the praetor will declare that, unless within a certain time the inheritance shall have fallen and been entered upon, he will order the creditors to possess the goods of the deceased, and in the meantime will order such matters as are pressing to be sold off through procurators.
Hoc articulo " quisque" omnes significantur: et ideo labeo scribit, si ita scriptum sit: " titius et seius quanta quisque eorum ex parte heredem me habuerit scriptum, heres mihi esto", nisi omnes habeant scriptum heredem testatorem, neutrum heredem esse posse, quoniam ad omnium factum sermo refertur: in quo puto testatoris mentem respiciendam. sed humanius est eum quidem, qui testatorem suum heredem scripserit, in tantam partem ei heredem fore, qui autem eum non scripserit, nec ad hereditatem eius admitti.
In this article, " each" all are signified: and therefore labeo writes, if it be written thus: " titius and seius, to whatever share each of them shall have me written as heir, let him be my heir", unless all have the testator written as heir, neither can be heir, since the wording is referred to the act of all: in which I think the testator’s intention should be regarded. But it is more humane that he, indeed, who shall have written his testator as heir, shall be heir to him to that extent; while he who shall not have written him is not even to be admitted to his inheritance.
Is qui apud hostes est recte heres instituitur, quia iure postliminii omnia iura civitatis in personam eius in suspenso retinentur, non abrumpuntur: itaque si reversus fuerit ab hostibus, adire hereditatem poterit. servus quoque eius recte heres instituitur et, si reversus sit ab hostibus, potest eum iubere adire hereditatem: si vero ibi decesserit, qui ei heres existet potest per servum heres fieri.
He who is among the enemies is rightly instituted as heir, because by the right of postliminy all the rights of citizenship are held in suspense with respect to his person, not broken off: and so, if he shall have returned from the enemies, he will be able to enter upon the inheritance. His slave also is rightly instituted as heir, and, if he has returned from the enemies, he can order him to enter upon the inheritance: but if he has died there, whoever shall be his heir can become heir through the slave.
Si quis ita scripserit: " titius ex parte dimidia heres esto: idem titius ex altera parte dimidia, si navis ex asia venerit, heres esto", cum ex pura institutione adierit heres, quamvis condicio alterius institutionis pendeat, ex asse fit heres, scilicet etiam condicione deficiente, cum non prosit ei condicio quicquam existens: quippe cum non dubitetur, quin, si quis ex parte dimidia heres institutus sit nec praeterea quisquam alius, ipse ex asse heres institui videatur.
If someone has written thus: " titius is to be heir as to a half share; the same titius, as to the other half share, if the ship has come from Asia, is to be heir," then, when by the pure (unconditional) institution he has entered upon the inheritance, although the condition of the other institution is pending, he becomes heir for the whole, namely even if the condition fails, since the condition, even if fulfilled, profits him nothing: indeed, since there is no doubt that, if someone has been instituted heir as to a half share and, besides, no one else, he himself is seen to have been instituted heir for the whole.
Ex facto proponebatur: quidam duos heredes scripsisset, unum rerum provincialium, alterum rerum italicarum, et, cum merces in italiam devehere soleret, pecuniam misisset in provinciam ad merces comparandas, quae comparatae sunt vel vivo eo vel post mortem, nondum tamen in italiam devectae, quaerebatur, merces utrum ad eum pertineant, qui rerum italicarum heres scriptus erat an vero ad eum, qui provincialium. dicebam receptum esse rerum heredem institui posse nec esse inutilem institutionem, sed ita, ut officio iudicis familiae herciscundae cognoscentis contineatur nihil amplius eum, qui ex re institutus est, quam rem, ex qua heres scriptus est, consequi. ita igitur res accipietur.
From the facts it was proposed: someone had appointed two heirs, one of provincial property, the other of Italian property; and, since he was accustomed to convey merchandise into Italy, he had sent money into the province for purchasing merchandise, which was purchased either while he was alive or after his death, yet not yet conveyed into Italy; the question was asked whether the merchandise belongs to the one who was written as heir of Italian things, or rather to the one of provincial things. I said it is a received view that an heir of a thing can be instituted and that the institution is not useless, but in such a way that, by the office of the judge hearing the suit for partition of the family estate, it is confined that the one who is instituted with respect to a thing obtains nothing more than the thing from which he has been written heir. Thus, accordingly, the matter will be taken.
for example, suppose two heirs have been instituted, one from the Cornelian estate, the other from the Livian estate, and that of the estates the one indeed constitutes three-quarters of the goods, the other a quarter: they will indeed be heirs in equal shares, as if instituted without specified parts; nevertheless they will be held by the office of the judge, that to each of them the estate which was left be adjudicated or attributed.
Unde scio quaesitum, aeris alieni onus pro qua parte adgnosci debeat. et refert papinianus, cuius sententiam ipse quoque probavi, pro hereditariis partibus eos adgnoscere aes alienum debere, hoc est pro semisse: fundos etenim vice praeceptionis accipiendos. quare si forte tantum sit aes alienum, ut nihil detracto eo superesse possit, consequenter dicemus institutiones istas ex re factas nullius esse momenti: et si forte falcidia interveniens recisionem esset legatorum factura, sic officio iudicis recidit praeceptiones istas, ut non plus quisque eorum habeat quam esset habiturus, si legatum accepisset vel aliud vel etiam praeceptiones.
Whence I know it has been asked for what share the burden of debt ought to be acknowledged. And Papinian reports—whose opinion I too have approved—that they ought to acknowledge the debt according to their hereditary shares, that is, for a half: for the landed estates are to be taken in the place of a preemption. Therefore, if by chance the debt is so great that, nothing remaining after it is deducted, nothing could be left over, we will consequently say that those appointments made on account of the property (ex re) are of no effect; and if by chance the Falcidian allowance, intervening, would be going to make a reduction of legacies, then, by the judge’s office, these preemptions are cut back, so that each of them has not more than he would have had if he had received it as a legacy or otherwise, even as preemptions.
Cum haec ita sint, haec etiam institutio, de qua quaeritur, non est repellenda, si alius rerum provincialium, alius rerum italicarum heres fuerit scriptus, officioque iudicis adtribuentur singulis res quae adscriptae sint, erunt tamen heredes ex aequis partibus, quia nulla pars adscripta est. quae res facit, ut, si forte in aliis facultatibus plus sit ( in italicis forte quam in provincialibus), in aliis minus et aeris alieni ratio urguet, debeat dici imminutionem eandem fieri quam supra ostendimus: proinde et si aliis fuerint legata relicta, contributio admittenda erit.
Since these things are so, this institution as well, about which inquiry is made, is not to be rejected, if one person has been appointed heir of the provincial things, another of the Italian things, and by the office of the judge the things that have been ascribed shall be assigned to each; nevertheless they will be heirs in equal parts, because no share has been ascribed. This brings it about that, if perhaps in some assets there is more ( in the Italian perhaps than in the provincial), in others less, and the reckoning of indebtedness presses, it ought to be said that the same diminution is to be made as we have shown above: accordingly, even if legacies have been left to others, contribution will have to be admitted.
Rerum autem italicarum vel provincialium significatione quae res accipiendae sint, videndum est. et facit quidem totum voluntas defuncti: nam quid senserit, spectandum est. verumtamen hoc intellegendum erit rerum italicarum significatione eas contineri, quas perpetuo quis ibi habuerit atque ita disposuit, ut perpetuo haberet: ceteroquin si tempore in quo transtulit in alium locum, non ut ibi haberet, sed ut denuo ad pristinum locum revocaret, neque augebit quo transtulit neque minuet unde transtulit: ut puta de italico patrimonio quosdam servos miserat in provinciam, forte galliam, ad exigendum debitum vel ad merces comparandas, recursuros, si comparassent: dubium non est, quin debeat dici ad italicum patrimonium eos pertinere debere.
But as to the signification of Italian or provincial things, it must be ascertained what things are to be taken. And indeed the will of the deceased does the whole: for what he intended must be observed. Nevertheless this must be understood: that by the signification of Italian things those are contained which someone has held there perpetually and thus disposed, that he should hold them perpetually. Otherwise, if at the time at which he transferred [them] to another place, it was not in order that he might have them there, but so that he might call them back again to their pristine place, it will neither augment that to which he transferred them nor diminish that from which he transferred them: for instance, from his Italian patrimony he had sent certain slaves into a province, perhaps Gaul, to exact a debt or to procure merchandise, with the intention that they would return if they procured [it]; there is no doubt that it ought to be said that they pertain to the Italian patrimony.
as it is reported by Mucius, when a farm (fundus) was bequeathed either with the equipment (instrumentum) or with the things that are there: for Mucius says that a groom (agaso), sent into the villa by the paterfamilias, does not pertain to the legacy of the farm, because he was not for that reason sent there, namely, in order to be there. accordingly, if a slave was sent into the villa to be there for the meantime, because he had offended his master, as if relegated for a time, it was responded that he does not pertain to the legacy of the villa. therefore not even slaves who were accustomed to work in the field, who used to return to other fields, and, as if lent by another, are in such a condition as to pertain to the legacy, because they were not in the field in such a way that they seemed destined for that field.
Proinde et si pecuniam misit in provinciam ad merces comparandas et necdum comparatae sint, dico pecuniam, quae idcirco missa est, ut per eam merces in italiam adveherentur, in italico patrimonio adiungendam: nam et si dedisset in provincia de pecuniis, quas in italia exercebat, ituras et redituras, dicendum est hanc quoque italici patrimonii esse.
Accordingly, even if he sent money into the province for purchasing merchandise and it has not yet been purchased, I say that the money, which for that reason was sent so that by it the goods might be conveyed into Italy, is to be added to the Italian patrimony: for even if he had disbursed in the province from monies which he was exercising (employing) in Italy, destined to go and to return, it must be said that this too belongs to the Italian patrimony.
Cum in testamento ita scribitur: " si filius meus me vivo morietur, nepos ex eo post mortem meam natus heres esto", duo gradus heredum sunt: nullo enim casu uterque ad hereditatem admittitur. ex quo apparet, si nepoti titius substitutus fuerit et filius patri heres exstiterit, non posse titium una cum filio heredem esse, quia non in primum, sed in secundum gradum substituitur.
When in a testament it is written thus: "if my son dies while I am alive, let the grandson from him, born after my death, be heir," there are two degrees of heirs: for in no case are both admitted to the inheritance. Whence it appears that, if Titius has been substituted to the grandson and the son has become heir to his father, Titius cannot be heir together with the son, because he is substituted not in the first, but in the second degree.
Haec verba: " publius marcus gaius invicem substituti heredes mihi sunto" sic interpretanda sunt, ut breviter videretur testator tres instituisse heredes et invicem eos substituisse, perinde ac si ita scripsisset: " ille et ille et ille instituti heredes et substituti sunto".
These words: " publius marcus gaius mutually substituted heirs to me let them be" are to be interpreted thus, that briefly the testator would seem to have instituted three heirs and to have substituted them for one another, just as if he had written thus: " that one and that one and that one let them be instituted heirs and substitutes".
Servus testamento heres pure scriptus, liber autem iussus esse, si intra kalendas decembres decem dedisset, si codicillis pure libertatem acceperit, intra kalendas quidem neque liber neque heres erit, nisi decem dederit: si intra kalendas non dederit, liber ex codicillis erit.
A slave unconditionally instituted as heir by the testament, but ordered to be free if, within the Kalends of December, he should give ten: if by codicils he has received liberty unconditionally, then by the Kalends he will be neither free nor heir, unless he gives the ten; if he does not give within the Kalends, he will be free under the codicils.
Si quis servum suum liberum sub condicione, heredem pure scripsisset eumque vendidisset pendente condicione, iussu emptoris servus adire hereditatem potest, quia et constitit institutio et est qui ius imperandi habet.
If someone had written his own slave to be free under a condition, and had appointed him heir purely (unconditionally), and had sold him while the condition was pending, by the order of the buyer the slave can enter upon the inheritance, because both the appointment stands established and there is one who has the right of commanding.
Igitur cum servus sub condicione liber esse iubetur et legatum pure accepit, si pendente condicione manumissus vel alienatus fuerat, legatum habebit aut domino adquiret, quamvis mortis tempore condicio libertatis extincta fuerit: si vero post defectum condicionis manumissus aut alienatus fuerit, legatum ad irritum recidit.
Therefore, when a slave is ordered to be free under a condition and has received a legacy purely (unconditionally), if, while the condition is pending, he was manumitted or alienated, he will have the legacy himself or acquire it for his master, although at the time of death the condition of liberty was extinguished: but if, after the failure of the condition, he was manumitted or alienated, the legacy falls back into nullity.
Cum venditor servum ante traditionem ab emptore pro parte heredem scriptum adire iubet, restituere coheredi servi necesse habet, quia lucrum facere eius servi iure quem vendidit non debet. plane non totum quod adquisierit restituet, sed pro ea dumtaxat parte, qua servus coheredem habuerit,
When the vendor, before delivery, orders a slave—who has been written by the buyer as heir for a share—to enter upon the inheritance, he has necessity to restitute to the slave’s coheir, because he ought not to make profit by the right of that slave whom he sold. Clearly he will not restitute the whole that he has acquired, but only for that part, to the extent that the slave had a coheir,
Si pater familias titium, quem ingenuum esse credebat, heredem scripserit eique, si heres non esset, sempronium substituerit, deinde titius, quia servus fuerat, iussu domini adierit hereditatem: potest dici sempronium in partem hereditatis admitti. nam qui scit aliquem servum esse et eum heredem scribit et ita substituit: " si stichus heres non erit, semprionius heres esto", intellegitur tale quod dicere: " si stichus neque ipse heres erit neque alium fecerit". at qui eum, quem liberum putat esse, heredem scripserit, hoc sermone " si heres non erit" nihil aliud intellegitur significare, quam si hereditatem vel sibi non adquisierit vel mutata condicione alium heredem non fecerit, quae adiectio ad eos pertinet, qui patres familias heredes scripti postea in servitutem deducti fuerint. igitur in hoc casu semisses fient ita, ut alter semis inter eum, qui dominus instituti heredis fuerit, et substitutum aequis portionibus dividatur:
If a paterfamilias shall have appointed Titius, whom he believed to be freeborn, as heir, and shall have substituted Sempronius for him if he should not be heir, then Titius, because he was a slave, enters upon the inheritance by order of his master: it can be said that Sempronius is admitted to a part of the inheritance. For he who knows someone to be a slave and writes him as heir and thus substitutes: " si Stichus heir shall not be, Sempronius heir be," is understood to say something of this sort: " if Stichus shall neither himself be heir nor make another heir." But he who has written as heir one whom he thinks to be free, by this phrasing " if he shall not be heir" is understood to signify nothing other than this: either that he has not acquired the inheritance for himself, or that, his condition having been changed, he has not made another heir—an addition which pertains to those who, having been written as heirs as patresfamilias, were afterwards reduced into slavery. Therefore in this case half-shares will be made, in such a way that the other half-share is divided in equal portions between the one who was the master of the instituted heir and the substitute:
Qui solvendo non erat, duos apollonios liberos heredesque esse iusserat. altero ante apertas tabulas testamenti mortuo non ineleganter defendi poterit eum qui supererit liberum et solum necessarium heredem fore. quod si uterque vivit, institutionem nullius esse momenti propter legem aeliam sentiam, quae amplius quam unum necessarium heredem fieri vetat:
He who was not solvent had ordered that two Apollonii be free and heirs. One of them having died before the tablets of the testament were opened, it can be not inelegantly defended that the one who survives will be free and the sole necessary heir. But if both are alive, the institution is of no moment on account of the Lex Aelia Sentia, which forbids that more than one necessary heir be made:
Pater familias testamento duos heredes instituerat: eos monumentum facere iusserat in diebus certis: deinde ita scripserat: " qui eorum non ita fecerit, omnes exheredes sunto": alter heres hereditatem praetermiserat, reliquus heres consulebat, cum ipse monumentum exstruxisset, numquid minus heres esset ob eam rem, quod coheres eius hereditatem non adisset. respondit neminem ex alterius facto hereditati neque alligari neque exheredari posse, sed uti quisque condicionem implesset, quamvis nemo adisset praeterea, tamen eum heredem esse.
A paterfamilias had appointed two heirs by his testament: he had ordered them to make a monument on fixed days; then he had written thus: “whoever of them shall not have done thus, let all be disinherited.” One heir had omitted to enter upon the inheritance; the remaining heir consulted, since he himself had constructed the monument, whether he was any the less an heir on that account, because his coheir had not entered upon the inheritance. He replied that no one can, by another’s act, be either bound to an inheritance or disinherited, but that, as each one fulfilled the condition, although no one besides had entered upon it, nevertheless he is heir.
" si maevia mater mea et fulvia filia mea vivent, tum mihi lucius titius heres esto". servius respondit, si testator filiam numquam habuerit, mater autem supervixisset, tamen titium heredem fore, quia id, quod impossibile in testamento scriptum esset, nullam vim haberet.
" if maevia my mother and fulvia my daughter shall be living, then let lucius titius be my heir." servius responded that, if the testator had never had a daughter, but the mother had survived, nevertheless titius would be heir, because that which in a testament had been written as impossible would have no force.
Quidam cum filium familias heredem instituere vellet, ne ad patrem eius ex ea hereditate quicquam perveniret, voluntatem suam exposuit filio: filius cum patris offensam vereretur, petit a testatore, ne sub condicione " si a patre emancipatus esset" heredem eum institueret et impetravit ab eo, ut amicum suum heredem institueret: atque ita testamento amicus filii ignotus testatori heres institutus est nec quicquam ab eo petitum est. quaerebatur, si ille amicus aut adire nollet aut aditam nollet restituere hereditatem, an fideicommissum ab eo peti possit aut aliqua actio adversus eum esset et utrum patri an filio competeret. respondit, etiamsi manifestum sit scriptum heredem fidem suam interposuisse, non tamen aliter ab eo fideicommissum peti posse quam si et ipsum testatorem fidem eius secutum esse probaretur.
A certain man, when he wished to institute as heir a son in paternal power, so that nothing from that inheritance should come to his father, disclosed his intention to the son: the son, since he feared his father’s displeasure, asked the testator not to institute him as heir under the condition “if he had been emancipated by his father,” and he obtained from him that he should institute his friend as heir; and thus by the will the son’s friend, unknown to the testator, was instituted heir, and nothing was asked of him. The question was raised whether, if that friend were unwilling either to enter upon the inheritance or, having entered upon it, to restore the inheritance, a fideicommissum could be demanded from him or some action would lie against him, and whether it would belong to the father or to the son. He answered that, even if it is manifest that the instituted heir interposed his good faith, nevertheless a fideicommissum cannot be demanded from him otherwise than if it were proved that the testator himself followed his good faith.
if, however, when he was being asked by the filius familias, the friend had also undertaken that he would enter upon the inheritance and would restore it to him once made pater familias, it would not be absurd to say that there would be an action of mandate: and that action would be useless to the father, because it is not in accordance with good faith that there be restored to him that which the testator did not wish to come to him: but neither would the ordinary one be available to the son; rather a useful action, just as it is thought proper to grant to one who, when he was a filius familias, had stood surety for someone and, having become pater familias, paid.
Quidam testamento ita heredes instituit: " titia filia mea heres esto: si quid mihi liberorum me vivo mortuove nascetur, tunc qui virilis sexus unus pluresve nascentur, ex parte dimidia et quarta, qui feminini sexus una pluresve natae erunt, ex parte quarta mihi heres sit": postumus ei natus est: consulebatur, quota ex parte postumus heres esset. respondit eam hereditatem in septem partes distribuendam, ex his filiam quattuor, postumum tres habituros, quia filiae totus as, postumo dodrans datus est, ut quarta portione amplius filia quam postumus ferre debeat. ideo si postuma quoque nata esset, tantundem sola filia, quantum uterque postumorum habituri essent.
Someone by his testament instituted heirs thus: " titia, my daughter, shall be heir: if any children shall be born to me, whether I live or am dead, then whoever of the male sex, whether one or more, shall be born, shall be my heir for a half share and a quarter, and whoever of the female sex, whether one or more, shall be born, for a quarter share": a posthumous child was born to him: it was consulted, for what portion the posthumous child would be heir. He answered that that inheritance must be distributed into seven parts, of these the daughter will have four, the posthumous three, because to the daughter a whole as, to the posthumous a dodrans (three quarters) was given, so that by a quarter portion the daughter ought to take more than the posthumous. Therefore, if a posthumous daughter also had been born, the daughter alone would have as much as both the posthumous children would have.
In testamento ita scriptum est: " lucius titius ex duabus unciis, gaius attius ex parte una, maevius ex parte una, seius ex partibus duabus heredes mihi sunto": consulebatur quid iuris esset. respondit hanc scripturam illam interpretationem accipere posse, ut lucius titius duas uncias habeat, ceteri autem quasi sine partibus instituti ex reliquo dextante heredes sint: quem dextantem ita dividi oportet, ut seius quincuncem, attius et maevius alterum quincuncem habeant.
in the will it is written thus: " lucius titius from two ounces, gaius attius from one share, maevius from one share, seius from two shares, are to be my heirs": it was asked what the law was. he answered that this wording can receive that interpretation, that lucius titius have two ounces, but that the others, as if instituted without shares, be heirs out of the remaining ten-twelfths: which ten-twelfths ought to be divided thus, that seius have five-twelfths, and attius and maevius have the other five-twelfths.
Interdum nec cum libertate utiliter servus a domina heres instituitur, ut constitutione divorum severi et antonini significatur, cuius verba haec sunt: " servum adulterii accusatum non iure testamento manumissum ante sententiam ab ea muliere videri, quae rea fuerit eiusdem criminis postulata, rationis est". quare sequitur, ut in eundem a domina collata institutio nihil momenti habeat.
Sometimes not even together with freedom is a slave advantageously appointed heir by his mistress, as is signified by the constitution of the deified Severus and Antoninus, whose words are these: " a slave accused of adultery is not seen as lawfully manumitted by testament before judgment by that woman who has been charged as defendant with the same crime, this is a matter of reason". Wherefore it follows that an institution conferred by the mistress upon that same person has no force.
In extraneis heredibus illa observantur: ut sit cum eis testamenti factio, sive ipsi heredes instituantur sive hi qui in potestate eorum sunt, et id duobus temporibus inspicitur, testamenti facti, ut constiterit institutio, et mortis testatoris, ut effectum habeat. hoc amplius et cum adibit hereditatem esse debet cum eo testamenti factio, sive pure sive sub condicione heres institutus sit: nam ius heredis eo vel maxime tempore inspiciendum est, quo adquirit hereditatem. medio autem tempore inter factum testamentum et mortem testatoris vel condicionem institutionis exsistentem mutatio iuris heredi non nocet, quia, ut dixi, tria tempora inspicimus.
In the case of extraneous heirs the following are observed: that there be testamentary capacity with them, whether they themselves are instituted as heirs or those who are in their power; and this is inspected at two times—at the making of the testament, that the institution may stand, and at the death of the testator, that it may have effect. Moreover, also when he shall enter upon the inheritance there must be testamentary capacity with him, whether the heir has been instituted purely or under a condition: for the right of the heir is to be inspected most of all at that very time at which he acquires the inheritance. But in the intermediate time between the making of the testament and the death of the testator, or while the condition of the institution exists, a change of legal status does not harm the heir, because, as I said, we consider three times.
Servum meum heredem institutum cum libertate si vivus vendidero ei, cum quo testamenti factio non est, posteaque eum redemero, ex testamento mihi heres esse poterit nec medium tempus, quo apud eum fuit, vitiavit institutionem, quia verum est utroque tempore tam testamenti faciendi quam mortis tempore meum fuisse. unde si apud eum remanserit, vitiatur institutio: vel si cum eo testamenti factio est, iussu eius adeundo adquiret ei hereditatem.
If I, while alive, sell my slave—instituted heir with liberty—to someone with whom there is no testamenti factio, and afterwards redeem him, he will be able to be my heir under the testament, nor did the intermediate time during which he was with that person vitiate the institution, because it is true that at both times, both at the time of making the testament and at the time of death, he was mine. Whence, if he remains with that person, the institution is vitiated; or, if there is testamenti factio with him, then at his order, by entering upon it, he will acquire the inheritance for him.
Si quis ita scripserit: " stichus, si meus erit cum morior, liber et heres esto", alienatus non poterit iussu emptoris adire hereditatem, quamvis, etsi non erat hoc expressum, non alias liber et heres fieri poterat, quam si mansisset eius. sed si vivus eum manumiserit, celsus libro quinto decimo digestorum scribit fieri hunc heredem: non enim hunc casum testatorem voluisse excludere palam est neque verba omnino repugnant: nam quamvis servus eius non est, at certe libertus est.
If anyone has written thus: " stichus, if you will be mine when I die, be free and heir," one who has been alienated will not be able, by the order of the buyer, to enter upon the inheritance, although, even if this had not been expressed, he could not otherwise become free and heir than if he had remained his. But if, while alive, he manumits him, Celsus in the fifteenth book of the Digest writes that this man becomes heir: for it is clear that the testator did not wish to exclude this case, nor do the words at all conflict: for although he is not his slave, yet surely he is his freedman.
Lucius titius seio et sempronio ex semissibus heredibus institutis et ceteris exheredatis invicem heredem substituit, deinde legata et libertates dedit, postea ita subiecit: " cornelius et sallustius et varro aequis partibus heredes sunto, quos invicem substituo": quaero, quantum vel priores duo ex semissibus instituti vel posteriores habere debeant. Marcellus respondit in obscuro esse, cornelium et sallustium et varronem primo an secundo vel tertio gradu heredes instituere voluerit: sed secundum scripturam testamenti quae proponeretur, alterum assem datum eis videri.
Lucius Titius, Seius and Sempronius having been instituted as heirs in half-shares (semisses) and the others disinherited, substituted them as reciprocal heir; then he gave legacies and manumissions; afterwards he added thus: “Cornelius and Sallustius and Varro shall be heirs in equal parts, whom I substitute mutually for each other.” I ask how much either the former two instituted in half-shares or the latter ought to have. Marcellus replied that it is obscure whether he wished to institute Cornelius and Sallustius and Varro as heirs in the first or in the second or third grade; but according to the wording of the testament that was presented, it seems that a second as was given to them.
Pater filio impuberi servum heredem substituit liberumque esse iussit: eum pupillus vendidit titio: titius eum iam primo testamento facto in secundo testamento liberum heredemque esse iussit. superius testamentum titii ruptum est, quia is servus et heres potest esse et, ut superius testamentum rumpatur, sufficit ita posterius factum esse, ut aliquo casu potuerit ex eo heres existere. quod ad vim autem eius institutionis pertinet, ita se res habet, ut, quamdiu pupillo ex ea substitutione heres potest esse, ex titii testamento libertatem hereditatemque consequi non possit: si pupillus in suam tutelam pervenerit, perinde ex titii testamento liber heresque sit ac si pupillo substitutus non fuisset: si pupillo heres exstitit, propius est, ut titio quoque, si velit, heres esse possit.
A father, for his underage son, substituted a slave as heir and ordered him to be free: the ward sold him to titio: titius, his first testament already made, in his second testament ordered him to be free and heir. The earlier testament of titius is broken, because this man can be both slave and heir, and, for the earlier testament to be broken, it suffices that the later was made in such a way that in some event an heir could arise from it. But as to the force of that institution, the matter stands thus: so long as the ward can be heir from that substitution, he cannot obtain liberty and the inheritance from titius’s testament: if the ward has come into his own guardianship, let him be free and heir from titius’s testament just as if he had not been substituted to the ward: if he became heir to the ward, it is more plausible that he can be heir to titius also, if he wishes.
Si is qui solvendo non est primo loco stichum, secundo eum cui ex fideicommissi causa libertatem debet liberum et heredem instituerit, neratius secundo loco scriptum heredem fore ait, quia non videtur creditorum fraudandorum causa manumissus.
If one who is not solvent has in the first place instituted Stichus, and in the second place the person to whom he owes liberty by reason of a fideicommissum, as free and heir, Neratius says that the one written in the second place will be heir, because he does not seem to have been manumitted for the purpose of defrauding the creditors.
Si quis ita heredem instituerit: " titius qua ex parte mihi socius est in vectigali salinarum, pro ea parte mihi heres esto", quidam putant, si asse descripto id adiectum sit, ut maxime socius fuerit titius, non esse heredem, sed si qua pars vacua relicta fuerit, ex ea heredem esse. quod totum et ineptum et vitiosum est: quid enim vetat asse descripto utiliter titium ex parte fore quarta, ex qua socius erat, heredem institutum esse?
If someone should thus institute an heir: " Titius, in whatever share he is my associate in the tax‑farm of the salt‑works, for that share be my heir," certain persons think that, if after the as has been apportioned this has been added, then, however much Titius was an associate, he is not heir; but if any share has been left vacant, from that share he is heir. Which is altogether both inept and faulty: for what forbids, with the as apportioned, that Titius was validly instituted heir for the fourth part, in which he was associate?
Si heres institutus scribendi testamenti tempore civis romanus fuit, deinde ei aqua et igni interdictum est, heres fit, si intra illud tempus quo testator decessit redierit aut, si sub condicione heres institutus est, quo tempore condicio exsistit. idem et in legatis et in bonorum possessionibus.
If an instituted heir was a Roman citizen at the time of writing the testament, and thereafter he was interdicted from water and fire, he becomes heir if he has returned by the time when the testator died, or, if he was instituted heir under a condition, by the time when the condition arises. The same holds in legacies and in possession of goods.
" titius ex semisse heres esto: seius ex quadrante heres esto: titius si in capitolium ascenderit, ex alio quadrante heres esto". antequam capitolium ascendat si pro herede gerat, ex semisse heres erit, si capitolium ascenderit, et ex quadrante heres erit nec erit ei necesse pro herede gerere quippe iam heredi.
" let titius be heir from a half-share; let seius be heir from a quadrant; if titius shall have ascended to the capitol, let him be heir from another quadrant." before he ascends the capitol, if he acts as heir, he will be heir from the half-share; if he ascends the capitol, he also will be heir from the quadrant, and it will not be necessary for him to act as heir, since he is already heir.
Si ita scriptum fuerit: " titius ex parte tertia, maevius ex parte tertia heredes sunto: titius, si intra tertias kalendas navis ex asia venerit, ex reliqua parte heres esto": videamus, ne titius statim ex semisse heres sit: nam duo heredes instituti sunt, sed titius aut ex semisse aut ex besse: ita sextans utique erit in pendenti et, si condicio exstiterit, ex besse heres erit, si non exstiterit, ille sextans maevio adcrescet. sed si decesserit titius, antequam condicio exsistat, deinde condicio exstiterit, tamen ille sextans non titii heredi, sed maevio adcrescet: nam cum adhuc dubium esset, titio an maevio is sextans datus esset, titius decessit nec potest intellegi datus ei qui tempore dandi in rerum natura non fuit.
If it has been written thus: " titius as to a third part, maevius as to a third part, let them be heirs: let titius, if within the third day before the Kalends the ship shall have come from asia, be heir as to the remaining part": let us consider, lest titius straightaway be heir to a half; for two heirs are instituted, but titius either to a half or to two-thirds: thus one-sixth will in any case be in suspense and, if the condition is fulfilled, he will be heir to two-thirds; if it is not fulfilled, that one-sixth will accrue to maevius. But if titius has died before the condition is fulfilled, and then the condition is fulfilled, nevertheless that one-sixth will accrue not to the heir of titius, but to maevius: for since it was still doubtful whether that one-sixth had been given to titius or to maevius, titius died, nor can it be understood to have been given to one who at the time of the giving was not in existence.
Si attius titium et maevium et seium aequis partibus heredes instituit, titius interim solus adiit hereditatem et seium heredem instituit, poterit seius titii adire hereditatem, attii vel adire vel omittere: sed attio, antequam adeat vel omittat eius hereditatem, ex semisse heres erit. si adierit seius attii hereditatem, titius ex triente dumtaxat heres erit et per hereditatem titii triens dumtaxat ad seium perveniet, alterum trientem ex sua institutione habebit. quid ergo si ab attio titius et seius heredes instituti sunt, titius adierit hereditatem, titio seius heres exstiterit?
If attius instituted tit ius and maev ius and sei us as heirs in equal parts, tit ius meanwhile alone entered upon the inheritance and instituted sei us as heir, sei us will be able to enter upon tit ius’s inheritance, and as to attius’s either to enter upon it or to omit it: but, as regards attius, before he enters upon or omits his inheritance, he will be heir for a half. If sei us shall have entered upon attius’s inheritance, tit ius will be heir for a third only, and through the inheritance of tit ius a third only will come to sei us; the other third he will have by his own institution. What then if by attius tit ius and sei us were instituted as heirs, tit ius entered upon the inheritance, and to tit ius sei us became heir?
Qui solvendo non erat, servum primo loco et alterum servum secundo loco heredes scripsit. solus is qui primo loco scriptus est hereditatem capit: nam lege aelia sentia ita cavetur, ut, si duo pluresve ex eadem causa heredes scripti sint, uti quisque primus scriptus sit, heres sit.
He who was not solvent wrote as heirs a slave in the first place and another slave in the second place. Only he who is written in the first place takes the inheritance; for by the Lex Aelia Sentia it is thus provided that, if two or more are written as heirs from the same cause, whichever is written first is heir.
Qui volebat filiam exheredare, sic testamento comprehendit: " te autem, filia, ideo exheredavi, quoniam contentam te esse dote volui": quaero an efficaciter exheredata sit. modestinus respondit nihil proponi, cur non esset voluntate testatoris exheredata.
He who wanted to disinherit his daughter included thus in his testament: " but you, daughter, for this reason I have disinherited you, because I wished you to be content with the dowry": I ask whether she has been effectively disinherited. modestinus replied that nothing is put forward why she should not be disinherited by the will of the testator.
Quotiens non apparet, quis heres institutus sit, institutio non valet ( quippe evenire potest, si testator complures amicos eodem nomine habeat et ad designationem singulari nomine utatur): nisi ex aliis apertissimis probationibus fuerit revelatum, pro qua persona testator senserit.
Whenever it does not appear who has been instituted as heir, the institution is not valid (for it can happen, if the testator has several friends of the same name and uses a single name for designation): unless it has been revealed from other most manifest proofs for which person the testator had in mind.
Heredes sine partibus utrum coniunctim an separatim scribantur, hoc interest, quod, si quis ex coniunctis decessit, non ad omnes, sed ad reliquos qui coniuncti erant pertinet, sin autem ex separatis, ad omnes, qui testamento eodem scripti sunt heredes, portio eius pertinet.
As to whether heirs without shares are written conjointly or separately, this makes a difference: if one of the conjoint ones has died, it pertains not to all, but to the remaining who were conjoint; but if from the separate ones, his portion pertains to all who in the same testament are written as heirs.
Eius servum, qui post mortem meam natus erit, heredem institui posse labeo frequenter scribit idque verum esse manifesto argumento comprobat: quia servus hereditarius, priusquam adeatur hereditas, institui heres potest, quamvis is testamenti facti tempore nullius sit.
Labeo frequently writes that the slave of one who will be born after my death can be instituted heir, and he proves that this is true by a manifest argument: because a hereditary slave, before the inheritance is entered upon, can be instituted heir, although at the time the testament is made he is the property of no one.
Hereditas ad statium primum nullo iure pertinet, cum institutus heres non sit: nec quicquam ei prodest, quod ab eo aliquid legatum est aut libertus ei defuncti testamento commendatus est. ex quo si manumissus non est, servus est.
The inheritance pertains to Statius Primus by no right, since he has not been instituted heir; nor does it profit him at all that something was bequeathed to him by the deceased, or that a freedman of the deceased was commended to him by the testament. From which, if he has not been manumitted, he is a slave.
Si ita quis heredes instituerit: " titius heres esto: gaius et maevius aequis ex partibus heredes sunto", quamvis et syllaba coniunctionem faciat, si quis tamen ex his decedat, non alteri soli pars adcrescit, sed et omnibus coheredibus pro hereditariis portionibus, quia non tam coniunxisse quam celerius dixisse videatur.
If someone has appointed heirs in this way: " titius be heir: gaius and maevius be heirs in equal parts," although even the syllable makes a conjunction, yet if any of these should die, the share does not accrue to the other alone, but to all the coheirs according to their hereditary portions, because he seems not so much to have conjoined as to have spoken more quickly.
Si quis sempronium heredem instituerit sub hac condicione " si titius in capitolium ascenderit", quamvis non alias heres esse possit sempronius, nisi titius ascendisset in capitolium, et hoc ipsum in potestate sit repositum titii: quia tamen scriptura non est expressa voluntas titii, erit utilis ea institutio. atquin si quis ita scripserit: " si titius voluerit, sempronius heres esto", non valet institutio: quaedam enim in testamentis si exprimantur, effectum nullum habent, quando, si verbis tegantur, eandem significationem habeant quam haberent expressa, et momentum aliquod habebunt. sic enim filii exheredatio cum eo valet, si quis heres existat: et tamen nemo dubitat, quin, si ita aliquis filium exheredaverit: " titius heres esto: cum heres erit titius, filius exheres esto", nullius momenti esse exheredationem.
If someone should institute Sempronius as heir under this condition, " if Titius shall have ascended to the Capitol," although Sempronius can in no other way be heir unless Titius has ascended to the Capitol, and this very thing is placed in the power of Titius: nevertheless, because the writing does not expressly set forth the will of Titius, that institution will be effective. But if someone should write thus: " if Titius shall will it, let Sempronius be heir," the institution is not valid: for certain things in testaments, if they are expressed, have no effect, whereas, if they are veiled in words, they have the same signification as they would have if expressed, and will have some weight. Thus a son’s disinheritance is valid, provided there is someone who is heir: and yet no one doubts that, if someone has thus disinherited a son: " let Titius be heir: when Titius shall be heir, let the son be disinherited," the disinheritance is of no moment.
" cornelius et maevius, uter eorum volet, heres esto": uterque vult: trebatius neutrum fore heredem, cartilius utrumque: tu cui adsentiaris? proculus: cartilio adsentio et illam adiectionem " uter eorum volet"supervacuam puto: id enim etiam ea non adiecta futurum fuit, ut, uter vellet, heres esset, uter nollet, heres non esset. quod si hi ex numero necessariorum heredum essent, tum id non frustra adiectum esse et non solum figuram, sed vim quoque condicionis continere: dicerem tamen, si uterque heres esse vellet, utrumque heredem esse.
" cornelius and maevius, whichever of them may wish, let him be heir": both wish: trebatius [says] that neither will be heir, cartilius that both: whom do you assent to? proculus: I assent to cartilius and I consider that addition " whichever of them may wish"superfluous: for even with that not added it would also have come about that whichever wished would be heir, whichever did not wish would not be heir. But if these men were of the number of necessary heirs, then that was not added in vain and contains not only the form, but also the force of a condition: nevertheless I would say that, if each wished to be heir, each is heir.
Sed illud quaeri potest, an idem servandum sit quod senatus censuit, etiamsi in aliam personam captionem direxerit, veluti si ita scripserit: " titius, si maevium tabulis testamenti sui heredem a se scriptum ostenderit probaveritque, heres esto", quod in sententiam senatus consulti incidere non est dubium.
But this can be asked, whether the same must be observed which the senate decreed, even if he has directed the captation toward another person; for instance, if he has written thus: " titius, if he shall show from the tablets of his will and have proved that he has had maevium written by himself as heir, let him be heir", which it is not doubtful falls within the purport of the senatorial decree.
Asse toto non distributo ita scriptum est: " quem heredem codicillis fecero, heres esto": titium codicillis heredem instituit. eius quidem institutio valet ideo, quod, licet codicillis dari hereditas non possit, tamen haec ex testamento data videtur: sed hoc tantum ex hereditate habebit, quantum ex asse residuum mansit.
With the as not wholly distributed, it is written thus: "whom I shall have made heir by codicils, let him be heir": he instituted Titius as heir by codicils. The institution of him is indeed valid for this reason, that, although an inheritance cannot be given by codicils, nevertheless this is seen as given from the testament: but he will have only so much from the inheritance as remained, as residue, out of the as.
Qui non militabat, bonorum maternorum, quae in pannonia possidebat, libertum heredem instituit, paternorum, quae habebat in syria, titium. iure semisses ambos habere constitit, sed arbitrum dividendae hereditatis supremam voluntatem factis adiudicationibus et interpositis propter actiones cautionibus sequi salva falcidia, scilicet ut, quod vice mutua praestarent, doli ratione quadranti retinendo compensetur.
he who was not on military service appointed his freedman heir of the maternal goods, which he possessed in pannonia, and titius of the paternal goods, which he had in syria. by law it was established that both have half shares; but let the arbiter for dividing the inheritance follow the last will, with adjudications made and cautions interposed on account of actions, the falcidian portion being saved—namely, that what they would furnish in mutual turn be compensated by retaining a quadrant by reason of fraud.
Lucio titio ex duabus partibus, publio maevio ex quadrante scriptis heredibus assem in dodrantem esse divisum respondi: modum enim duarum partium ex quadrante declarari: quod veteres nummis titio legatis nummorum specie non demonstrata ceterorum legatorum contemplatione receperunt.
To Lucius Titius, written as heir “from two parts,” and to Publius Maevius “from a quadrant,” I replied that the as is divided into a dodrans (three-quarters): for the measure of the two parts is declared from the quadrant; because the ancients, when coins were bequeathed to Titius with the kind of coins not specified, took it by consideration of the other bequests.
Filiis heredibus aequis partibus institutis ac postea fratris filio pro duabus unciis unum assem inter omnes videri factum placuit et ex eo decem uncias filios accepisse: tunc enim ex altero asse portionem intellegi relictam, cum asse nominatim dato vel duodecim unciis distributis residua portio non invenitur: nihil autem interest, quo loco sine portione quis heres instituatur, quo magis assis residuum accepisse videatur.
With the sons instituted as heirs in equal parts, and afterward it was decided that, in favor of the brother’s son for two unciae, one as should be deemed to have been constituted among all, and that from it the sons received ten unciae: for then a portion is understood to have been left from another as, when, an as having been expressly given or the twelve unciae having been distributed, no residual portion is found; moreover, it makes no difference in what place someone is instituted heir without a portion, the more so that he appears to have received the residue of the as.
Clemens patronus testamento caverat, ut, si sibi filius natus fuisset, heres esset, si duo filii, ex aequis partibus heredes ^ heres^ essent, si duae filiae, similiter: si filius et filia, filio duas partes, filiae tertiam dederat. duobus filiis et filia natis quaerebatur, quemadmodum in proposita specie partes faciemus, cum filii debeant pares esse vel etiam singuli duplo plus quam soror accipere? quinque igitur partes fieri oportet, ut ex his binas masculi, unam femina accipiat.
Clemens the patron had stipulated in his testament that, if a son had been born to him, he should be heir; if two sons, they should be heirs from equal parts, heirs ^ heir^; if two daughters, similarly: if a son and a daughter, he had given to the son two parts, to the daughter a third. With two sons and a daughter born, it was asked how in the proposed case we should make the shares, since the sons ought to be equal or even each receive double as much as the sister? Therefore five parts must be made, so that from these the males take two apiece, the female one.
Si ita scripserit testator: " quanta ex parte me a titio heredem institutum recitassem, ex ea parte sempronius mihi heres esto", non est captatoria institutio: plane nullo recitato testamento ab ipso testatore inanis videbitur institutio remota suspicione captatoriae institutionis.
If the testator should write thus: " quanta ex parte me a Titius heir instituted I had recited, to that share let Sempronius be my heir", it is not a captatory institution: plainly, with no testament recited by the testator himself, the institution will seem void, the suspicion of a captatory institution being removed.
Temporibus divi hadriani senatus censuit, si testator, qui cum moritur solvendo non fuit, duobus pluribusve libertatem dederit eisque hereditatem restitui iusserit et institutus heres suspectam sibi hereditatem dixerit, ut adire eam cogatur et ad libertatem perveniat qui priore loco scriptus fuerit, eique hereditas restituatur. idem servandum in his, quibus per fideicommissum libertas data fuerit. igitur si primo loco scriptus desideraret adire hereditatem, nulla difficultas erit.
In the times of the deified Hadrian the senate decreed that, if a testator, who at his death was not solvent, has given liberty to two or more and has ordered the inheritance to be restored to them, and the instituted heir has said the inheritance is suspect to him, he be compelled to enter upon it, and that the one who has been written in the prior place may attain to liberty, and that to him the inheritance be restored. The same is to be observed in the case of those to whom liberty has been given by fideicommissum. Therefore, if the one written in the first place should desire that the inheritance be entered upon, there will be no difficulty.
for if the later ones also say that they are free and desire that the inheritance be restored, whether the inheritance is solvent, and whether, all having been made free, it ought to be restored, would be inquired before the praetor. but with the first being absent, the next, desiring that the inheritance be entered upon, is not to be heard, because, if the first should wish the inheritance to be restored to himself, he is to be preferred, and this one will be a slave.
Si servo fideicommissa data sit libertas, heres hunc eundem servum cum libertate heredem reliquisset, quaesitum est, an necessarius fiat heres. et humanius est et magis aequitatis ratione subnixum non fieri necessarium: qui enim etiam invito defuncto poterat libertatem extorquere, is liber esse iussus non magnum videtur beneficium a defuncto consequi, immo nihil commodi sensisse, sed magis debitam sibi accepisse libertatem.
If freedom has been given to a slave by fideicommissum, and the heir had left this same slave, together with freedom, as heir, the question was asked whether he becomes a necessary heir. And it is more humane and more supported by the reasoning of equity that he not become necessary: for he who could even against the will of the deceased extort his freedom, having been bidden to be free does not seem to obtain any great benefaction from the deceased—indeed to have sensed nothing of advantage—but rather to have received the freedom owed to him.
Idem probandum erit et in illo servo, quem testator ea lege emerat, ut manumitteret, si heres fuerit institutus: nam et hic seposito beneficio testatoris proprio iure poterit ad libertatem pervenire ex constitutione divi marci.
The same will have to be proved also in the case of that slave whom the testator had bought on this condition, that he should manumit him if he were instituted as heir: for this man too, the benefit of the testator being set aside, will be able to arrive at liberty by his own right, by the constitution of the deified Marcus.
Lucius titius, qui fratrem habebat, testamento ita cavit: " titius frater meus ex asse mihi heres esto: si mihi titius heres esse noluerit aut ( quod abominor) prius morietur quam meam hereditatem adierit aut filium filiamve ex se natum natamve non habebit, tunc stichus et pamphilus servi mei liberi et heredes mihi aequis partibus sunto". quaero, cum titius hereditatem adierit et liberos aditae hereditatis tempore non habuerit, an stichus et pamphilus ex substitutione liberi et heredes esse possint. item quaero, si ex substitutione neque liberi neque heredes esse possint, an in partem hereditatis videantur adiecti. respondit: apparet quidem non eam mentem testatoris fuisse, ut quemquam heredem adhiberet fratri, quem aperte ex asse heredem instituisset: igitur si frater adiit, stichus et pamphilus heredes non erunt: quos eo amplius noluit heredes esse, si frater prius quam hereditatem adiret decessisset liberis relictis.
Lucius Titius, who had a brother, thus provided in his testament: "Let Titius, my brother, be my heir for the whole share; if Titius is unwilling to be my heir, or (which I abominate) he dies before he has entered upon my inheritance, or will not have a son or daughter born from himself, then let Stichus and Pamphilus, my slaves, be free and my heirs in equal parts." I inquire, when Titius has entered upon the inheritance and did not have children at the time the inheritance was entered upon, whether Stichus and Pamphilus can be free and heirs by way of substitution. Likewise I inquire, if by way of substitution they can be neither free nor heirs, whether they seem to be added into a part of the inheritance. He responded: It does indeed appear that it was not the intention of the testator to admit anyone as heir along with the brother, whom he had openly instituted heir for the whole share: therefore, if the brother entered, Stichus and Pamphilus will not be heirs; those whom all the more he did not wish to be heirs, if the brother had died before he entered upon the inheritance, leaving children.
Iam dubitari non potest suos quoque heredes sub hac condicione institui posse, ut, si voluissent, heredes essent, si heredes non essent, alium quem visum erit eis substituere: negatumque hoc casu necesse esse sub contraria condicione filium exheredare, primum quia tunc tantum id exigeretur, cum in potestate eius non esset, an heres patri existeret, exspectantis extrinsecus positae condicionis eventum, deinde quod, etsi quacumque posita condicione deberet filius sub contraria condicione exheredari, in proposito ne possibilis quidem repperiri posset, certe, si verbis exprimeretur, inepta fieret: huic enim condicioni " si volet, heres esto" quae alia verba contraria concipi possunt quam haec " si nolet heres esse, exheres esto?" quod quam sit ridiculum, nulli non patet.
Now it can no longer be doubted that one’s own heirs too can be instituted under this condition, that, if they should wish, they be heirs; if they should not be heirs, they may substitute another whom shall seem good to them: and it has been denied that in this case it is necessary to disinherit the son under a contrary condition, first because that would be demanded only when it was not in his power whether he should emerge as heir to his father, as he awaited the outcome of a condition set from without, then because, even if under whatever condition posited the son had to be disinherited under the contrary condition, in the case proposed not even a possible one could be found; certainly, if it were expressed in words, it would become inept: for to this condition " si volet, heres esto" what other contrary words can be conceived than these " si nolet heres esse, exheres esto?" and how ridiculous that is is evident to no one not at once.
Non ab re autem hoc loco velut excessus hic subiungetur suis ita heredibus institutis " si voluerint heredes esse" non permittendum amplius abstinere se hereditate, cum ea condicione instituti iam non ut necessarii, sed sua sponte heredes exstiterunt. sed et ceteris condicionibus, quae in ipsorum sunt potestate, si sui pareant, ius abstinendi adsequi non debent.
Not out of place, moreover, in this place there will be subjoined, as it were, an excursus: when sui heirs are thus instituted, “if they should wish to be heirs,” it is not to be permitted for them any further to abstain from the inheritance, since, instituted under that condition, they have become heirs now not as necessary heirs, but of their own accord. But also, with respect to other conditions which are in their power, if they comply of themselves, they ought not to attain the right of abstaining.
Ex unciis sex primo herede instituto, secundo ex octo, si tertius ex residua parte vel nulla portionis facta mentione heres instituatur, quinque uncias hereditatis tertius habebit: in viginti quattuor etenim partes hereditate distributa tertio ratio calculi veluti ex decem partibus instituto quinque uncias adsignabit.
With the first heir instituted for six unciae, and the second for eight, if a third is instituted heir from the residual part or with no mention made of a portion, the third will have five unciae of the inheritance: for, the inheritance having been distributed into twenty-four parts, the method of calculation will assign to the third, as though instituted for ten parts, five unciae.
Ei qui solvendo non est aliquo casu evenit, ut et servus cum libertate heres exsistat et praeterea alius heres adiciatur: veluti si servo cum libertate herede instituto ita adiectum sit: " si mihi stichus heres erit, tunc titius quoque heres esto": nam titius, antequam stichus ex testamento heres exstiterit, heres esse non potest, cum autem semel heres exstiterit servus, non potest adiectus efficere, ut qui semel heres exstitit desinat heres esse.
In the case of one who is not solvent, it happens in some contingency that both a slave becomes heir with liberty and, besides, another heir is adjoined: for example, if, after the slave has been instituted heir with liberty, it is added thus: " if Stichus shall be heir to me, then let Titius also be heir": for Titius cannot be heir before Stichus has become heir from the testament; but when once the slave has become heir, the person adjoined cannot bring it about that one who has once become heir ceases to be heir.
Si socius heres institutus sit ex asse et servo communi legetur pure sine libertate, hoc legatum non constitit. plane sub condicione ei utiliter et sine libertate legabitur, quoniam et proprio servo ab herede recte sub condicione legatur. quare etiam heres institui sine libertate ut alienus socio herede scripto poterit, quia et proprius cum domino heres institui poterit.
If a partner has been instituted heir for the whole, and the common slave is bequeathed to him purely without liberty, this legacy is not constituted. Clearly, under a condition it will be effectually bequeathed to him and without liberty, since even to one’s own slave a bequest by the heir is rightly made under a condition. Wherefore the [common] slave also can be instituted heir without liberty as if he were alien, with the partner having been appointed heir, because even one’s own [slave] can be instituted heir together with his master.
Testamento domini servus sub condicione cum libertate heres institutus pendente adhuc condicione necem domini detexit eumque praetor mereri libertatem decrevit. etsi postea condicio testamenti exstiterit, aliunde liber est, id est ex praemio, non ex testamento: igitur non est necessarius domino heres: licet autem ei volenti adire.
By the testament of his master, a slave, instituted heir under a condition along with liberty, while the condition was still pending, disclosed the murder of his master, and the praetor decreed that he merited liberty. Even if afterward the condition of the testament came to be, he is free from another source, that is, from reward, not from the testament: therefore he is not a necessary heir to the master; however, it is permitted to him, if willing, to enter upon it.
Pactumeius androsthenes pactumeiam magnam filiam pactumeii magni ex asse heredem instituerat, eique patrem eius substituerat. pactumeio magno occiso et rumore perlato, quasi filia quoque eius mortua, mutavit testamentum noviumque rufum heredem instituit hac praefatione: " quia heredes, quos volui habere mihi contingere non potui, novius rufus heres esto". pactumeia magna supplicavit imperatores nostros et cognitione suscepta, licet modus institutioni contineretur, quia falsus non solet obesse, tamen ex voluntate testantis putavit imperator ei subveniendum. igitur pronuntiavit hereditatem ad magnam pertinere, sed legata ex posteriore testamento eam praestare debere, proinde atque si in posterioribus tabulis ipsa fuisset heres scripta.
Pactumeius Androsthenes had instituted Pactumeia Magna, the daughter of Pactumeius Magnus, as heir for the whole share, and had substituted her father for her. When Pactumeius Magnus had been killed and a rumor had been conveyed that his daughter too was dead, he changed the testament and instituted Novius Rufus as heir with this preface: "because I could not have the heirs whom I wished to have befall me, let Novius Rufus be heir." Pactumeia Magna petitioned our emperors, and, a hearing having been undertaken, although a restriction was contained in the appointment, since what is false is not wont to prejudice, nevertheless the emperor, from the will of the testator, thought that aid should be given to her. Therefore he pronounced that the inheritance pertained to Magna, but that she ought to render the legacies under the later testament, just as if in the later tablets she herself had been written as heir.
We can also do so for grandsons and, in turn, for further descendants, provided they are not going to revert into the father’s power. But if their fathers predecease them, only then can a substitute be appointed for them, if the fathers have been instituted as heirs or disinherited; for thus, after the Velleian law ^ Vellaean^, by succeeding they do not rupture the testament. For if the principal testament has been ruptured, the pupillary has likewise vanished. But if someone has written in an unrelated minor as heir, he will be able to substitute for him, provided only that he has adopted or adrogated him into the place of a grandson, the son having predeceased.
Quisquis autem impuberi testamentum facit, sibi quoque debet facere: ceterum soli filio non poterit, nisi forte miles sit. adeo autem, nisi sibi quoque fecerit, non valet, ut, nisi adita quoque patris hereditas sit, pupillare testamentum evanescat. plane si omissa causa principalis testamenti ab intestato possideatur hereditas, dicendum est et pupillo substitutum servandum:
Whoever makes a testament for a minor must also make one for himself: otherwise he will not be able to make it for his son alone, unless perhaps he is a soldier. And indeed, unless he has made one for himself as well, it is not valid, to such a degree that, unless the father’s inheritance has also been entered upon, the pupillary testament evaporates. Clearly, if, with the principal ground of the testament omitted, the inheritance is held intestate, it must be said that the substitution appointed for the pupil is likewise to be preserved.
Interdum etiam pupillaris testamenti causa compellendum heredem institutum adire hereditatem, ut ex secundis tabulis fideicommissum convalescat: ut puta si iam pupillus decessit: ceterum si adhuc vivat, improbum esse iulianus existimat eum, qui sollicitus est de vivi hereditate.
Sometimes also, for the sake of a pupillary testament, the instituted heir must be compelled to enter upon the inheritance, so that the fideicommissum from the second tablets may take effect: for instance, if the ward has already died: but if he is still alive, Julian considers it improper for one to be anxious about the inheritance of a living man.
Prius autem sibi quis debet heredem scribere, deinde filio substituere et non convertere ordinem scripturae: et hoc iulianus putat prius sibi debere, deinde filio heredem scribere: ceterum si ante filio, deinde sibi testamentum faciat, non valere. quae sententia rescripto imperatoris nostri ad virium lupum brittanniae praesidem comprobata est, et merito: constat enim unum esse testamentum, licet duae sint hereditates, usque adeo, ut quos quis sibi facit necessarios, eosdem etiam filio faciat et postumum suum filio impuberi possit quis substituere.
But first one ought to write an heir for oneself, then to substitute for one’s son, and not to invert the order of the writing; and Julianus also thinks that first one ought for oneself, then to write an heir for the son. Otherwise, if he makes a testament first for the son and then for himself, it is not valid. This opinion was approved by a rescript of our emperor to Virius Lupus, governor of Britain, and with good reason: for it is agreed that there is one testament, although there are two inheritances, to such an extent that those whom one makes necessary heirs for oneself one likewise makes for the son, and one can substitute one’s own posthumous child to one’s underage son.
Sed et si ita scripserit: " si filius mihi heres non erit, seius heres esto: filius heres esto", secundo quidem gradu seius scriptus est heres et, si filius heres non exstiterit, procul dubio seius ei heres erit: sed et si exstiterit filius heres et intra pubertatem defunctus est, seius admittendus recte videtur, ut non ordo scripturae, sed ordo successionis spectetur.
But also if he has written thus: "if my son will not be my heir, let seius be heir: let the son be heir," seius is indeed written as heir in the second rank, and, if the son does not become heir, beyond doubt seius will be his heir; but also if the son did become heir and died before puberty, seius seems rightly to be admitted, so that regard is had not to the order of the writing, but to the order of succession.
Cum filio impuberi pater ita substituerit: " quisquis mihi heres erit, idem filio impuberi heres esto", placuit ad hanc substitutionem scriptos tantummodo ad hereditatem admitti: itaque dominus, cui per servum hereditatis portio quaesita sit, ex substitutione impuberi heres effici non poterit, si servus ab eius exierit potestate.
When a father has thus substituted for a prepubescent son: “whoever shall be my heir, let the same be heir to the prepubescent son,” it has been decided that to this substitution only those written (named) are to be admitted to the inheritance: accordingly, a master, to whom through a slave a portion of an inheritance has been acquired, cannot be made heir from the substitution for the prepubescent, if the slave has gone out of his power.
Sed si alter pubes, alter impubes hoc communi verbo " eosque invicem substituo" sibi fuerint substituti, in vulgarem tantummodo casum factam videri substitutionem severus et antoninus constituit: incongruens enim videbatur, ut in altero duplex esset substitutio, in altero sola vulgaris. hoc itaque casu singulis separatim pater substituere debebit, ut, si pubes heres non exstiterit, impubes ei substituatur, si autem impubes heres exstiterit et intra pubertatem decesserit, pubes frater in portionem coheredis substituatur: quo casu in utrumque eventum substitutus videbitur, ne, si vulgari modo impuberi quoque substituat, voluntatis quaestionem relinquat, utrum de una vulgari tantummodo substitutione in utriusque persona sensisse intellegatur: ita enim in altero utraque substitutio intellegitur, si voluntas parentis non refragetur. vel certe evitandae quaestionis gratia specialiter in utrumque casum impuberi substituat fratrem: " sive heres non erit sive erit et intra pubertatis annos " decesserit".
but if one is of age, the other underage, and with this common phrase " eosque invicem substituo" they have been substituted for one another, Severus and Antoninus constituted that the substitution is to be seen as made only for the ordinary case: for it seemed incongruent that in the one there should be a double substitution, in the other only the ordinary. therefore in this case the father ought to substitute for each separately, so that, if the one of age shall not have become heir, the underage be substituted to him; but if the underage shall have become heir and shall have died within puberty, the brother of age be substituted into the share of a coheir: in which case he will be seen to have been substituted for either event, lest, if he also substitutes the underage in the ordinary manner, he leave a question of intention, whether he is to be understood to have meant a single merely ordinary substitution in the person of each: for thus in the other both substitutions are understood, if the parent’s will does not gainsay. or certainly, for the sake of avoiding the question, let him specially substitute the brother to the underage in each case: " sive heres non erit sive erit et intra pubertatis annos " decesserit".
Si in testamento heredes scripti ita alicui substituti fuerint, ut, si is heres non esset, quisquis sibi heres esset is in parte quoque deficientis esset heres: pro qua parte quisque heres exstitisset, pro ea parte eum in portione quoque deficientis vocari placet neque interesse, iure institutionis quisque ex maiore parte heres factus esset an quod per legem alteram partem alicuius vindicasset.
If in a testament the heirs named have been thus substituted to someone, that, if that person were not heir, whoever would be his own heir would also be heir in the share of the one failing: in proportion to the share in which each had become heir, in that proportion it is deemed that he is to be called also into the portion of the one failing, nor does it matter whether, by the right of institution, each had been made heir from a greater share, or because by statute he had vindicated (claimed) another’s portion.
Si is, qui ex bonis testatoris solidum capere non possit, substitutus sit ab eo impuberi filio eius, solidum ex ea causa capiet, quasi a pupillo capiat. sed hoc ita interpretari iulianus noster videtur, ut ex bonis, quae testatoris fuerant, amplius capere non possit: quod si pupillo aliquid praeterea adquisitum esset aut si exheredato esset substitutus, non impediri eum capere, quasi a pupillo capiat.
If one who cannot take the whole (in solidum) from the testator’s goods has been substituted by him to his underage son, he will take the whole on that account, as if he were taking from the pupil. But our Julian seems to interpret this thus: that from the goods which were the testator’s he cannot take more; but if something besides had been acquired for the pupil, or if he had been substituted to one disinherited, he is not prevented from taking, as if he were taking from the pupil.
Verbis civilibus substitutionem post quartum decimum annum aetatis frustra fieri convenit: sed qui non admittitur ut substitutus, ut adiectus heres quandoque non erit, ne fiat contra voluntatem, si filius non habeat totum interim, quod ei testamento pater dedit.
It is agreed that a substitution, in civil terms, made after the fourteenth year of age is in vain; but he who is not admitted as a substitute will not at any time be an added heir, lest anything be done against the will, if the son does not meanwhile have the whole which the father gave him by testament.
Qui liberis impuberibus substituit, aut pure aut sub condicione solet substituere. pure sic: " si filius meus intra pubertatem decesserit, seius heres esto": sive seius iste heres institutus sit et impuberi substitutus, nullam habet condicionem, sive solum substitutus. sub condicione autem institutum si substituat, id est " si mihi heres erit", non alias existet heres ex substitutione, nisi et ex institutione heres fuerit.
He who appoints a substitute for children under puberty is accustomed to substitute either purely or under condition. purely thus: " if my son shall have died before puberty, let Seius be heir": whether that Seius be instituted as heir and substituted to the underage, it carries no condition, or whether he be only substituted. under condition, however, if he substitutes one who is instituted, that is " if he will be my heir", he will not otherwise become heir by the substitution, unless he has also been heir by the institution.
Haec verba: " quisquis mihi heres erit, idem impuberi filio heres esto" hunc habent sensum, ut non omnis qui patri heres exstitit, sed is qui ex testamento heres exstitit substitutus videatur: et ideo neque pater, qui per filium, neque dominus, qui per servum exstitit, ad substitutionem admittetur, neque heredis heres, quia non ex iudicio veniunt. partes quoque eaedem ad substitutos pertinent, quas in ipsius patris familias habuerunt hereditate.
These words: "whoever shall be my heir, let that same man be heir to my underage son," have this sense: that not everyone who has become heir to the father, but he who has become heir under the testament, is to be regarded as substituted; and therefore neither the father, who has become [heir] through his son, nor the master, who has become [heir] through his slave, will be admitted to the substitution, nor the heir of the heir, because they do not come by judgment. The same shares also pertain to the substitute heirs as they had in the inheritance of the paterfamilias himself.
Si pater filio impuberi eosdem quos sibi et te unum praeterea heredem instituit, bonorum filii te dimidium, ceteros patris heredes communiter dimidium ita habere, ut unus semis apud te maneat, alterius semissis pro his partibus inter heredes paternos divisio fiat, quibus ex partibus hereditatem paternam haberent.
If a father has instituted for his underage son the same heirs as for himself, and you, one besides, as heir, you are to have one half of the son’s goods, and the other heirs of the father collectively one half, in such a way that one half remains with you, and of the other half let division be made among the paternal heirs according to those parts by which they would have the paternal inheritance.
Sed si plures sint ita substituti: " quisquis mihi ex supra scriptis heres erit", deinde quidam ex illis, posteaquam heredes exstiterint patri, obierunt, soli superstites ex substitutione heredes existent pro rata partium, ex quibus instituti sint, nec quicquam valebit ex persona defunctorum.
But if several are thus substituted: "whoever of the above-written shall be my heir," and then some of them, after they have become heirs to the father, have died, the survivors alone will be heirs by virtue of the substitution, in proportion to the shares for which they were instituted, and nothing will be valid from the persons of the deceased.
Filio impuberi heredi ex asse instituto substitutus quis est: exstitit patri filius heres: an possit substitutus separare hereditates, ut filii habeat, patris non habeat? non potest, sed aut utriusque debet hereditatem habere aut neutrius: iuncta enim hereditas coepit esse.
For a son under age instituted heir to the whole share, someone has been substituted: the son has become heir to his father. Can the substitute separate the inheritances, so that he have the son’s, but not the father’s? He cannot; rather he must have the inheritance of both or of neither: for the inheritance has begun to be conjoined.
Si ex asse heres institutus, filio exheredato substitutus repudiaverit patris hereditatem, cum non haberet substitutum, non poterit filii adire nec enim valet filii testamentum, nisi patris fuerit adita hereditas: nec enim sufficit ad secundarum tabularum vim sic esse factum testamentum, ut ex eo adiri hereditas possit.
If the heir instituted for the whole share, substituted for a disinherited son, were to repudiate the father’s inheritance, since he had no substitute, he will not be able to enter upon the son’s inheritance; for the son’s testament is not valid unless the father’s inheritance has been entered upon. Nor is it sufficient, for the force of the second tablets, that the testament was made in such a way that the inheritance could be entered upon under it.
Ad substitutos pupillares pertinent et si quae postea pupillis obvenerint: neque enim suis bonis testator substituit, sed impuberis, cum et exheredato substituere quis possit: nisi mihi proponas militem esse, qui substituit heredem hac mente, ut ea sola velit ad substitutum pertinere, quae a se ad institutum pervenerunt.
Things which later have come to the wards also pertain to pupillary substitutes: for the testator does not substitute with respect to his own goods, but to those of the impubes, since one can substitute even for a disinherited person: unless you put it to me that he is a soldier, who substituted an heir with this intention, that he wishes only those things to pertain to the substitute which have come from himself to the instituted heir.
In adrogato quoque impubere dicimus ad substitutum eius ab adrogatore datum non debere pertinere ea, quae haberet, si adrogatus non esset, sed ea sola, quae ipse ei dedit adrogator: nisi forte distinguimus, ut quartam quidem, quam omnimodo ex rescripto divi pii debuit ei relinquere, substitutus habere non possit, superfluum habeat. scaevola tamen libro decimo quaestionum putat vel hoc adrogatori permittendum, quae sententia habet rationem. ego etiam amplius puto et si quid beneficio adrogatoris adquisiit, et haec substitutum posse habere, ut puta adrogatoris amicus vel cognatus ei aliquid reliquit.
In the case also of an adrogated underage person, we say that there ought not to pertain to his substitute appointed by the adrogator those things which he would have had if he had not been adrogated, but only those things which the adrogator himself gave him: unless perhaps we distinguish that the fourth, indeed, which in any event by the rescript of the deified Pius he was bound to leave to him, the substitute cannot have; let him have the surplus. Scaevola, however, in the tenth book of the Questions thinks that even this should be permitted to the adrogator, which opinion has reason. I even think further that, if he acquired anything by the benefice of the adrogator, the substitute can have these as well, as, for example, a friend or kinsman of the adrogator left him something.
Nemo institutus et sibi substitutus sine causae mutatione quicquam proficit, sed hoc in uno gradu: ceterum si duo sint gradus, potest dici valere substitutionem, ut iulianus libro trigesimo digestorum putat: si quidem sic sit substitutus sibi, cum haberet coheredem titium: " si stichus heres non erit, liber et heres esto", non valere substitutionem: quod si ita: " si titius heres non erit, tunc stichus liber et heres et in eius partem esto", duos gradus esse atque ideo repudiante titio stichum liberum et heredem fore.
No one who has been instituted and substituted to himself accomplishes anything without a change of cause, and this in one degree; but if there are two degrees, the substitution can be said to be valid, as Julian in the thirtieth book of the Digest thinks: namely, if he has been thus substituted to himself, when he had Titius as coheir: "if Stichus will not be heir, let him be free and heir," the substitution is not valid; but if thus: "if Titius will not be heir, then let Stichus be free and heir and be in his share," there are two degrees, and therefore, Titius repudiating, Stichus will be free and heir.
Si filius, qui patri ac postea fratri ex secundis tabulis heres exstitit, hereditatem patris recuset, fraternam autem retinere malit, audiri debet: iustius enim praetorem facturum existimo, si fratri separationem bonorum patris concesserit. etenim ius dicenti propositum est liberos oneribus hereditariis non sponte susceptis liberare, non invitos ab hereditate removere, praesertim quod remotis tabulis secundis legitimam haberet fratris hereditatem. itaque legata dumtaxat ex secundis tabulis praestari debent habita ratione facultatium in falcidia non patris, ut alias solet, sed impuberis.
If a son, who became heir to his father and thereafter to his brother by second tablets, refuses the father’s inheritance but prefers to retain the brother’s, he ought to be heard: for I consider the praetor will act more justly if he grants to the brother a separation of the father’s goods. For it is set before one declaring the law to liberate children from hereditary burdens not undertaken of their own accord, not to remove the unwilling from an inheritance—especially since, the second tablets being set aside, he would have the brother’s inheritance by legitimate right. Accordingly, the legacies only from the second tablets must be rendered, account being taken of the means in the Falcidian calculation not of the father, as is otherwise usual, but of the minor.
Centurio filiis, si intra quintum et vicesimum annum aetatis sine liberis vita decesserint, directo substituit. intra quattuordecim annos etiam propria bona filio substitutus iure communi capiet, post eam autem aetatem ex privilegio militum patris dumtaxat cum fructibus inventis in hereditate.
A centurion makes a direct substitution for his sons, if they should depart life without children before the twenty-fifth year of age. Within fourteen years, the person substituted to the son will also take the son’s own goods by the common law; but after that age, by the soldiers’ privilege, that of the father only, together with the fruits found in the inheritance.
Si quis eum, quem testamento suo legavit, rursus a substituto filii liberum esse iusserit, liber erit quasi legato adempto: nam et in legato in his testamentis novissima scriptura erit spectanda, sicut in eodem testamento ( vel testamento et codicillis confirmatis) observaretur.
If anyone, as to him whom he bequeathed by his testament, shall thereafter have ordered through the substitute of his son that he be free, he will be free as though the legacy had been adempted: for even in regard to a legacy in these testaments the most recent writing is to be looked to, just as would be observed in the same testament ( or in a testament and codicils confirmed).
Si suo testamento perfecto alia rursus hora pater filio testamentum fecerit adhibitis legitimis testibus, nihilo minus id valebit et tamen patris testamentum ratum manebit. nam et si sibi et filio pater testamentum fecisset, deinde sibi tantum, utrumque superius rumpetur. sed si secundum testamentum ita fecerit pater, ut sibi heredem instituat, si vivo se filius decedat, potest dici non rumpi superius testamentum, quia secundum non valet, in quo filius praeteritus sit.
If, with his own testament completed, at another hour the father shall have made a testament for the son with the legitimate witnesses attending, nonetheless that will shall be valid, and yet the father’s testament will remain ratified. For even if the father had made a testament for himself and for his son, and then thereafter one for himself only, each earlier one will be broken. But if the father shall have made the second testament in such a way that he institutes an heir for himself, should the son die while he himself is alive, it can be said that the earlier testament is not broken, because the second is not valid, in which the son has been pretermitted.
Si servus communis substitutus sit impuberi cum libertate, si quidem a patre familias fuisset redemptus, erit impuberi necessarius: si vero ab impubere redemptus, non necessarius, sed voluntarius fit heres, ut iulianus libro trigesimo digestorum scribit: quod si neque a patre neque a pupillo fuerit redemptus, aequitatis ratio suggerit, ut ipse pretium partis suae domino offerens possit et libertatem et hereditatem consequi.
If a common slave has been substituted to a minor together with liberty, then if he had been redeemed by the pater familias, he will be a necessary heir to the minor; but if he had been redeemed by the minor, he becomes not a necessary but a voluntary heir, as iulianus writes in the thirtieth book of the Digest; but if he has been redeemed by neither the father nor the ward, the rationale of equity suggests that he himself, by offering to the master the price of his own share, can obtain both liberty and the inheritance.
Si ita quis substituerit: " si filius meus intra decimum annum decesserit, seius heres esto", deinde hic ante quartum decimum post decimum decesserit, magis est, ut non possit bonorum possessionem substitutus petere: non enim videtur in hunc casum substitutus.
If someone has substituted thus: "if my son shall have died within the tenth year, let seius be heir," then if this one has died before the fourteenth after the tenth, the stronger view is that the substituted [heir] cannot petition for bonorum possession: for he does not seem to have been substituted for this case.
Qui plures heredes instituit, ita scripsit: " eosque omnes invicem substituo". post aditam a quibusdam ex his hereditatem uno eorum defuncto, si condicio substitutionis exstitit alio herede partem suam repudiante, ad superstites tota portio pertinebit, quoniam invicem in omnem causam singuli substitui videbuntur: ubi enim quis heredes instituit et ita scribit: " eosque invicem substituo", hi substitui videbuntur, qui heredes exstiterunt.
He who appoints several heirs wrote thus: "and I substitute all of them mutually for one another." After the inheritance has been entered upon by some of them, one of them having died, if the condition of substitution has arisen with another heir repudiating his own share, the whole portion will pertain to the survivors, since each one will be considered to have been substituted mutually for every case: for where someone appoints heirs and writes thus: "and I substitute them mutually," those will be deemed to have been substituted who became heirs.
Si plures sint instituti ex diversis partibus et omnes invicem substituti, plerumque credendum et ex isdem partibus substitutos, ex quibus instituti sint, ut, si forte unus ex uncia, secundus ex octo, tertius ex quadrante sit institutus, repudiante tertio in novem partes dividatur quadrans feratque octo partes qui ex besse institutus fuerat, unam partem qui ex uncia scriptus est: nisi forte alia mens fuerit testatoris: quod vix credendum est, nisi evidenter fuerit expressum.
If several are instituted from diverse shares and are all substituted for one another, it is generally to be believed that they are also substituted from the same shares from which they were instituted; thus, if perhaps one is instituted from an uncia (one-twelfth), a second from eight (eight unciae, a bessis, i.e., two-thirds), a third from a quadrant (one-fourth), if the third repudiates, the quadrant is divided into nine parts, and let him who had been instituted from the bessis take eight parts, and him who is written from an uncia one part; unless perhaps the testator’s intention was otherwise: which is scarcely to be believed, unless it has been plainly expressed.
Si pater impuberes ^ impuberes^ filios invicem substituerit et ei, qui novissimus mortuus fuerit, titium, respondendum est solos fratres bonorum possessionem accepturos et quodammodo duos gradus huius institutionis factos, ut primo fratres invicem substituerentur, si illi non essent, tunc titius vocaretur.
If a father has substituted his underage ^ underage^ sons for one another, and for him who shall have died last, Titius, it must be answered that only the brothers will receive the possession of the goods, and that in a certain way two degrees of this institution are made: that first the brothers are substituted for one another; if they were not, then Titius would be called.
Si pater filium impuberem heredem scripserit et ei substituerit, si quis sibi post mortem natus erit, deinde vivo fratre postumus natus fuerit, testamentum rumpetur: post mortem autem fratris vivo patre natus solus heres patri suo existet.
If a father shall have written his underage son as heir and shall have substituted another for him, if anyone shall have been born to himself after his death, then, if a posthumous child shall have been born while the brother is alive, the testament will be broken: but after the brother’s death, if born with the father alive, he alone will stand as heir to his father.
Lex cornelia, quae testamenta eorum qui in hostium potestate decesserunt confirmat, non solum ad hereditatem ipsorum qui testamenta fecerunt pertinet, sed ad omnes hereditates, quae ad quemque ex eorum testamento pertinere potuissent, si in hostium potestatem non pervenissent. quapropter cum pater in hostium potestate decessit filio impubere relicto in civitate et is intra tempus pubertatis decesserit, hereditas ad substitutum pertinet, perinde ac si pater in hostium potestatem non pervenisset. sed si pater in civitate decessit, filius impubes apud hostes, si quidem mortuo patre filius in hostium potestatem pervenerit, non incommode dicitur hereditatem eius ex ea lege ad substitutos pertinere: si vero vivo patre filius in hostium potestatem pervenerit, non existimo legi corneliae locum esse, quia non efficitur per eam, ut is, qui nulla bona in civitate reliquit, heredes habeat.
The Cornelian law, which confirms the testaments of those who have died in the power of the enemy, pertains not only to the inheritance of those themselves who made the testaments, but to all inheritances which could have pertained to anyone from their testament, if they had not come into the power of the enemy. Wherefore, when a father died in the power of the enemy, with a son under puberty left in the city, and that son dies within the time of puberty, the inheritance pertains to the substitute, just as if the father had not come into the power of the enemy. But if the father died in the city, the son under age being among the enemies, if indeed after the father’s death the son came into the power of the enemy, it is not inaptly said that his inheritance by that law pertains to the substitutes; but if, however, while the father was alive the son came into the power of the enemy, I do not think the Cornelian law has a place, because it is not effected by it that one who left no goods in the city should have heirs.
Wherefore, even if a son of full age has been captured while his father is alive, and then, with the father having died in the civitas, he himself has died in the power of the enemy, the father’s inheritance, by the Law of the Twelve Tables, and not the son’s by the Lex Cornelia, pertains to the nearest agnate.
Si pater captus sit ab hostibus, mox filius et ibi ambo decedant, quamvis prior pater decedat, lex cornelia ad pupilli substitutionem non pertinebit, nisi reversus in civitate impubes decedat, quoniam et si ambo in civitate decessissent, veniret substitutus.
If a father is taken captive by enemies, soon the son as well, and there they both die, although the father dies first, the Cornelian law will not pertain to the pupillary substitution, unless, having returned to citizenship, the boy dies under age, since even if both had died in the state, the substitute would come.
Quidam testamento proculum ex parte quarta et quietum ex parte dimidia et quarta heredem instituit, deinde quieto florum, proculo sosiam heredes substituit, deinde, si neque florus neque sosia heredes essent, tertio gradu ex parte dimidia et quarta coloniam leptitanorum et ex quarta complures heredes substituit in plures quam tres uncias: quietus hereditatem adiit, proculus et sosia vivo testatore decesserunt: quaeritur, quadrans proculo datus ad quietum an ad substitutos tertio gradu pertineat. respondi eam videri voluntatem patris familias fuisse, ut tertio gradu scriptos heredes ita demum substituerit, si tota hereditas vacasset, idque apparere evidenter ex eo, quod plures quam duodecim uncias inter eos distribuisset, et idcirco partem quartam hereditatis de qua quaeritur ad quietum pertinere:
someone by his will instituted proculus heir to a fourth part and quietus to a half and a fourth, then he substituted as heirs for quietus, florus; for proculus, sosia; then, if neither florus nor sosia should be heirs, in the third degree he substituted, as to the half and the quarter, the colony of the leptitani, and, as to the quarter, several heirs in more than three ounces: quietus entered upon the inheritance; proculus and sosia died with the testator still alive: the question is asked whether the quarter given to proculus pertains to quietus or to the substitutes in the third degree. i answered that the intention of the head of the household seemed to have been that he thus and only then should substitute the heirs written in the third degree, if the whole inheritance had fallen vacant, and that this is clearly apparent from the fact that he had distributed among them more than twelve ounces, and therefore that the quarter part of the inheritance about which the question is raised pertains to quietus.
In substitutione filio ita facta: " quisquis mihi ex supra scriptis heres erit, idem filio heres esto", quaeritur, quisquis heres quandoque fuerit intellegatur an quisquis heres tum erit, cum filius moriatur. placuit prudentibus, si quandoque heres fuisset: quamvis enim vivo pupillo heres esse desisset, forte ex causa de inofficioso, quae pro parte mota est, futurum tamen eum heredem ex substitutione creditum est.
In a substitution for a son made thus: "whoever from the above-written shall be my heir, let the same be heir to the son," the question is raised whether it is to be understood as whoever shall be heir at any time, or as whoever shall be heir at the time when the son dies. It pleased the jurists that it means if he had been heir at any time: for although, while the pupil was alive, he had ceased to be heir—perhaps by reason of a cause de inofficioso (the action on an undutiful will), which is brought for a part—nevertheless he was believed to be going to be heir by virtue of the substitution.
Non simili modo in hac specie dicendum est, si quis, cum filios duos haberet, gaium puberem, lucium impuberem, ita filio substituisset: " si lucius filius meus impubes decesserit neque mihi gaius filius heres erit, tunc seius heres esto": nam ita prudentes hoc interpretati sunt, ut ad impuberis mortem condicio substitutionis esset referenda.
Not in a similar way is it to be said in this case, if someone, when he had two sons—gaius of full age, lucius under age—had thus appointed a substitute for his son: " if my son lucius, under age, shall have died, and gaius my son will not be my heir, then let seius be heir": for the jurists have interpreted this thus, that the condition of the substitution is to be referred to the death of the under-age one.
Qui complures heredes ex disparibus partibus instituerat et in his attium, si attius non adierit, ceteros ex isdem partibus quibus instituerat heredes ei substituerat: deinde, si attius non adisset, titium coheredem eis qui substituti sunt adiecit. quaesitum est, quam partem is et quam ceteri habituri essent. respondi titium virilem, ceteros hereditarias: veluti si tres fuissent, titium partem quartam attianae partis habiturum, reliquarum partium hereditarias partes, ex quibus instituti erant, reliquos habituros esse.
One who had appointed several heirs out of unequal parts, and among these attius, and, if attius should not enter upon the inheritance, had substituted to him the others as heirs in the same parts in which he had appointed them: then, if attius should not have entered, he added titium as coheir to those who are substituted. It was asked what share he and what share the others would have. I replied that titium would have a virile share, the others hereditary shares: for example, if there were three, titium would have a fourth part of attius’s portion, the remaining portions—the hereditary parts, in which they were appointed—the rest would have.
but if he had added not only Titius, but also others as heirs, these indeed would have virile shares: for instance, if, suppose, three coheirs had been substituted, and two outsiders added, he said that these would have fifth parts of Attius’s share, but that the remaining coheirs would have the hereditary shares.
Si filius et ex eo nepos postumus ita heredes instituantur, ut gallo aquilio placuit, et nepoti, si is heres non erit, titius substituatur, filio herede existente titium omnimodo, id est etiam si nepos natus non fuerit, excludi respondit.
If a son and, from him, a posthumous grandson are appointed heirs in such a manner as pleased gallus aquilius, and for the grandson, if he will not be heir, titius is substituted, he answered that, with the son being heir, titius is in every way— that is, even if the grandson has not been born— excluded.
Ex duobus impuberibus ei, qui supremus moreretur, heredem substituit. si simul morerentur, utrique heredem esse respondit, quia supremus non is demum qui post aliquem, sed etiam post quem nemo sit, intellegatur, sicut et e contrario proximus non solum is qui ante aliquem, sed etiam is ante quem nemo sit intellegitur.
Out of two minors he appointed a substitute heir for the one who should die supreme (i.e., last). If they were to die together, he replied that there would be an heir for each, because “the supreme” is understood not only as the one who is after someone, but also as the one after whom there is no one; just as, conversely, “the proximate” is understood not only as the one who is before someone, but also as the one before whom there is no one.
Filium impuberem et titium heredes instituit: titio maevium substituit, filio, quisquis sibi heres esset ex supra scriptis, substituit: titius omisit hereditatem, maevius adiit. mortuo deinde filio putat magis ei soli ex substitutione deferri pupilli hereditatem, qui patris quoque hereditatem adierit.
He instituted as heirs his under-age son and titius: he substituted maevius for titius; for the son, he substituted whoever should be his heir from those written above. titius renounced the inheritance; maevius entered upon it. Then, the son having died, he thinks that by the substitution the inheritance of the ward is rather conferred upon that one alone who has also entered upon the father’s inheritance.
Etsi contra tabulas patris petita sit a pupillo bonorum possessio, in substitutum tamen eius actionem legati dandam esse ita, ut augeantur praeter ea quod filius extraneis non debuerit. sic et crescere a substituto data legata, si per bonorum possessionem plus ad filium pervenisset, quemadmodum et ipse filius plus exceptis deberet. his consequens esse existimo, ut, si impubes ex asse scriptus sit et per bonorum possessionem semis ei ablatus sit, substitutus in partem legati nomine exoneretur, ut, quemadmodum portio, quae per bonorum possessionem accesserit, auget legata, ita et hic quae abscesserit minuat.
Even if the bonorum possessio has been sought by a ward contrary to his father’s tablets (will), nevertheless an action for the legacy is to be granted against his substitute, in such a way that they are augmented, save for that which the son would not have owed to outsiders. So too the legacies given by the substitute grow, if through bonorum possessio more would have come to the son, just as the son himself would owe more, the exceptions being reserved. From this I judge it to follow that, if one under puberty has been instituted heir to the whole, and by bonorum possessio a half has been taken from him, the substitute is discharged in part in respect of the legacy, so that, just as the portion which has accrued through bonorum possessio increases the legacies, so here that which has receded diminishes them.
Si a patre institutus rogatusque hereditatem restituere coactus ex fidecommissario adierit, quamvis cetera, quae in eodem testamento relicta sunt, per eam aditionem confirmentur, ut legata et libertates, secundas tamen tabulas non oportere resuscitari destituto iam iure civili testamento quintus cervidius scaevola noster dicebat. sed plerique in diversa sunt opinione, quia et pupillares tabulae pars sunt prioris testamenti, quo iure utimur.
If one instituted by his father and asked to restore the inheritance has been compelled, by reason of the fideicommissum, to enter upon it, although the other things that were left in the same testament are confirmed by that entry—such as legacies and manumissions—nevertheless the second tablets ought not to be revived, the civil-law testament having already been left without effect, so our Quintus Cervidius Scaevola used to say. But most are of a different opinion, because the pupillary tablets too are a part of the prior testament, a rule of law which we employ.
Cum ex filio quis duos nepotes impuberes habebat, sed alterum eorum in potestate, alterum non, et vellet utrumque ex aequis partibus heredem habere et, si quis ex his impubes decessisset, ad alterum partem eius transferre: ex consilio labeonis ofilii cascellii trebatii eum quem in potestate habebat solum heredem fecit et ab eo alteri dimidiam partem hereditatis, cum in suam tutelam venisset, legavit: quod si is, qui in potestate sua esset, impubes decessisset, alterum heredem ei substituit.
When a man had two underage grandsons through his son, but one of them was in his power and the other not, and he wished to have each as heir in equal shares and, if any of these underage ones should die, to transfer his part to the other: upon the counsel of labeo, ofilius, cascellius, and trebatius he made the one whom he had in his power sole heir and, from him, he bequeathed to the other half of the inheritance, when he had come under his own guardianship; and if the one who was in his power had died underage, he substituted the other as heir in his place.
Quidam quattuor heredes fecerat et omnibus heredibus praeter unum substituerat: unus ille, cui non erat quisquam substitutus, et ex ceteris alter vivo patre familias decesserant. patrem, cui nemo erat substitutus, ad substitutum quoque pertinere ofilius cascellius responderunt, quorum sententia vera est.
Someone had made four heirs and had substituted for all the heirs except one: that one, for whom no one had been substituted, and, from the others, another, died while the paterfamilias was alive. Ofilius and Cascellius answered that the share to which no one had been substituted pertains also to the substitute, whose opinion is true.
Causa cognita impubes adrogatus decesserat. quemadmodum legitimis heredibus auctoritate principali prospicitur vinculo cautionis, ita, si forte substituit naturalis pater impuberi, succurrendum erit substituto: nam et legitimis heredibus futuris non aliae quam utiles actiones praestari possunt.
Upon the case having been examined, an underage person adrogated had died. Just as provision is made for legitimate heirs, by imperial authority, through the bond of a security, so too, if perchance the natural father appointed a substitute for the underage person, aid must be given to the substitute: for even to those who are going to be legitimate heirs no actions other than utile actions can be afforded.
Coheredi substitutus priusquam hereditatem adiret aut condicio substitutionis existeret, vita decessit. ad substitutum eius, sive ante substitutionem sive postea substitutus sit, utraque portio pertinebit nec intererit, prior substitutus post institutum an ante decedat.
One substituted to a coheir, before he should enter upon the inheritance or before the condition of the substitution should arise, departed this life. To his substitute—whether he was appointed as substitute before the substitution or afterwards—both shares will pertain; nor will it matter whether the prior substitute dies after or before the instituted heir.
Quod si heredem filium pater rogaverit, si impubes diem suum obierit, titio hereditatem suam restituere, legitimum heredem filii salva falcidia cogendum patris hereditatem ut ab impubere fideicommisso post mortem eius dato restituere placuit, nec aliud servandum, cum substitutionis condicio puberem aetatem verbis precariis egreditur. quae ita locum habebunt, si patris testamentum iure valuit: alioquin si non valuit, ea scriptura, quam testamentum esse voluit, codicillos non faciet, nisi hoc expressum est. nec fideicommisso propriae facultates filii tenebuntur, et ideo, si pater filium exheredaverit et ei nihil reliquerit, nullum fideicommissum erit: alioquin, si legata vel fideicommissa filius acceperit, intra modum eorum fideicommissum hereditatis a filio datum citra falcidiae rationem debebitur.
But if a father has asked his son as heir, that, if he should die under age, he restore his inheritance to Titius, it has been decided that the legitimate heir of the son, saving the Falcidian portion, is to be compelled to restore the father’s inheritance, as by a fideicommissum given by the under-age person after his death; nor is anything else to be observed, since the condition of substitution, by precatory words, passes beyond the age of puberty. These provisions will have place thus, if the father’s testament was valid in law; otherwise, if it was not valid, that writing which he wished to be a testament will not make codicils, unless this is expressed. Nor will the son’s own means be bound by the fideicommissum; and therefore, if the father disinherited the son and left him nothing, there will be no fideicommissum. Otherwise, if the son has received legacies or fideicommissa, within the measure of those, the fideicommissum of the inheritance given by the son will be owed without reckoning of the Falcidian portion.
Qui discretas portiones coniunctis pluribus separatim dedit ac post omnem institutionis ordinem ita scripsit: " quos heredes meos invicem substituo", coniunctos primo loco vice mutua substituere videtur: quibus institutionum partes non agnoscentibus ceteros omnes coheredes admitti.
He who gave discrete portions separately to several conjoined persons and, after the whole order of institution, wrote thus: "I substitute my heirs for one another in turn," seems to substitute the conjoined persons in the first place by mutual turn: and if they do not acknowledge the parts of the institutions, all the remaining coheirs are to be admitted.
Qui patrem et filium pro parte heredes instituerat et invicem substituerat, reliquis coheredibus datis post completum assem ita scripsit: " hos omnes invicem substituo". voluntatis fit quaestio, commemoratione omnium patrem et filium substitutioni coheredum miscuisset an eam scripturam ad ceteros omnes transtulisset: quod magis verisimile videtur propter specialem inter patrem et filium substitutionem.
He who had instituted father and son as heirs for a share and had substituted them for one another, after the remaining coheirs had been appointed so that the as was completed, wrote thus: "I substitute all these for one another." A question of intention arises, whether by the mention of all he had mixed father and son into the substitution of the coheirs, or had transferred that wording to all the others: the latter seems more plausible, on account of the special substitution between father and son.
Coheres impuberi filio datus eidemque substitutus legata e secundis tabulis relicta perinde praestabit, ac si pure partem et sub condicione partem alteram accepisset. non idem servabitur alio substituto: nam ille falcidiae rationem induceret quasi plane sub condicione primis tabulis heres institutus, tametsi maxime coheres filio datus quadrantem integrum optineret. nam et cum legatum primis tabulis titio datur, secundis autem tabulis eadem res sempronio, sempronius quandoque titio concurrit.
A man given as coheir to an underage son and likewise substituted to him will furnish the legacies left by the second tablets just as if he had received one share purely and the other share under a condition. The same will not be observed if another is substituted: for that person would introduce the reckoning of the Falcidian quarter as though he had been instituted heir by the first tablets wholly under a condition, although, as one given as coheir to the son, he would in any case obtain the entire quarter. For even when by the first tablets a legacy is given to Titius, but by the second tablets the same thing to Sempronius, Sempronius sometimes concurs with Titius.
Cum pater impuberi filiae, quae novissima diem suum obisset, tabulas secundas fecisset et impubes filia superstite sorore pubere vita decessisset, irritam esse factam substitutionem placuit, in persona quidem prioris, quia non novissima decessit, in alterius vero, quia puberem aetatem complevit.
When a father had made second tablets for his prepubescent daughter, on the term that she should have met her last day last, and the prepubescent daughter had departed life with a pubescent sister surviving, it was held that the substitution had been made void: in the person indeed of the former, because she did not die last; and in that of the other, because she had completed the age of puberty.
Non videri cum vitio factam substitutionem his verbis placuit: " ille filius meus si ( quod abominor) intra pubertatis annos decesserit, tunc in locum partemve eius titius heres esto", non magis quam si post demonstratam condicionem sibi heredem esse substitutum iussisset: nam et qui certae rei heres instituitur coherede non dato, bonorum omnium hereditatem optinet.
It has been decided that a substitution is not seen as made with a defect by these words: " that son of mine, if ( which I abominate) he should die within the years of puberty, then in his place or to his share let titius be heir", no more than if, after the condition had been pointed out, he had ordered that a substitute be heir to himself: for even one who is instituted heir of a specific thing, with no coheir given, obtains the inheritance of all the goods.
Qui duos impuberes filios heredes reliquerat, ita substituit, si ambo mortui essent: deinde pueri post mortem patris simul perierunt: duae hereditates substituo deferuntur. sed si diversis temporibus vita decedant, in hereditate novissimi pueri eius fratris, qui ante mortuus est, hereditatem substitutus inveniet: sed in ratione falcidiae pueri prioris hereditas non veniet nec substitutus amplius quam sescunciam iure testamenti desiderabit: legata quoque, quae a substituto eius filii data sunt, qui prior intestato decessit, ad irritum reccidunt.
He who had left two underage sons as heirs thus appointed a substitute, if both were dead: thereafter the boys, after the father’s death, perished at the same time; two inheritances are tendered to the substitute. But if they depart from life at different times, in the inheritance of the latest boy the substitute will find the inheritance of his brother who died earlier; but in the computation of the Falcidian portion the inheritance of the earlier boy will not be included, nor will the substitute, by right of the testament, claim more than a sescuncia (one-eighth); likewise the legacies which were given by the substitute of that son who first died intestate fall to nullity.
Ex facto quaeritur: " qui filium habebat mutum puberem, impetravit a principe, ut muto substituere ei liceret, et substituit titium: mutus duxit uxorem post mortem patris et nascitur ei filius: quaero, an rumpatur testamentum. respondi: beneficia quidem principalia ipsi principes solent interpretari: verum voluntatem principis inspicientibus potest dici eatenus id eum tribuere voluisse, quatenus filius eius in eadem valetudine perseverasset, ut, quemadmodum iure civili pubertate finitur pupillare testamentum, ita princeps imitatus sit ius in eo, qui propter infirmitatem non potest testari. nam et si furioso filio substituisset, diceremus desinere valere testamentum, cum resipuisset, quia iam posset sibi testamentum facere: etenim iniquum incipit fieri beneficium principis, si adhuc id valere dicamus: auferret enim testamenti factionem homini sanae mentis.
From a case it is asked: "He who had a son mute and of puberty obtained from the emperor that it be permitted to appoint a substitute for the mute, and he appointed Titius. The mute took a wife after the death of his father, and a son is born to him: I ask whether the testament is broken." I answered: Imperial benefactions are indeed wont to be interpreted by the emperors themselves; but for those inspecting the emperor’s intention, it can be said that he wished to grant this only to the extent that his son persisted in the same condition, so that, just as by civil law a pupillary testament is ended by puberty, so the emperor imitated the law in the case of one who, on account of infirmity, cannot make a will. For even if he had appointed a substitute for a mad son, we would say that the testament ceases to be valid when he had recovered his senses, since he could already make a testament for himself: indeed the emperor’s benefaction begins to become inequitable if we still say that it remains valid; for it would take away testamentary capacity from a man of sound mind.
therefore it must also be said that the substitution is broken by the agnation of his own (suus) heir, because it makes no difference whether the son himself later appointed another heir, or began by law to have his own (suus) heir: for it is not likely that either the father or the prince thought of this case, so as to exheredate him who would be born afterwards. nor does it matter in what manner the principal (imperial) beneficium intervenes with respect to testamentary capacity, whether in the person of one or of several.
Item quaero, si ita facta proponatur substitutio: " filius meus si intra decem annos decesserit, titius heres esto, si intra quattuordecim, maevius" filiusque octo annorum decesserit, utrum titius solus ex substitutione ei heres erit an et maevius, quia certum est et intra decem et intra quattuordecim annos filium decessisse. respondi omne quidem spatium, quod est intra pubertatem, liberum esse patri ad substituendum filio, sed finis huius pubertas est: magis autem est in utroque eorum tempus suum separatim servari, nisi contraria voluntas testatoris aperte ostendatur.
Likewise I ask, if a substitution be proposed as having been made thus: " my son, if within ten years he shall have died, let titius be heir; if within fourteen, maevius" and the son has died at eight years of age, whether titius alone will be heir to him from the substitution, or also maevius, because it is certain that the son died both within ten and within fourteen years. I answered that indeed the whole span which is within puberty is free to the father for substituting for the son, but the end of this is puberty: rather, in the case of each of them his own time is to be observed separately, unless a contrary intention of the testator is openly shown.
Lucius titius cum haberet filios in potestate, uxorem heredem scripsit et ei substituit filios: quaesitum est, an institutio uxoris nullius momenti sit eo, quod ab eo gradu filii non essent exheredati. respondi eum gradum, a quo filii praeteriti sint, nullius esse momenti et ideo, cum idem substituti proponantur, ex testamento eos heredes exstitisse videri, scilicet quia non totum testamentum infirmant filii, sed tantum eum gradum, qui ab initio non valuit, sicut responsum est, si a primo sit filius praeteritus, a secundo exheredatus: nihil autem interest, qua ratione secundi heredis institutio valeat, utrum quia ab eo filius exheredatus est an quia ipse filius substitutus est.
Lucius Titius, since he had sons in his power, appointed his wife heir and substituted the sons to her: it was asked whether the institution of the wife is of no effect for this reason, that from that degree the sons had not been disinherited. I responded that the degree from which the sons have been passed over is of no effect, and therefore, since the same persons are put forward as substitutes, they are seen to have become heirs under the testament—namely because the sons do not invalidate the whole testament, but only that degree which from the beginning did not have force—just as it has been responded: if from the first a son is passed over, from the second he is disinherited. And it makes no difference by what rationale the institution of the second heir has validity, whether because from it the son is disinherited or because the son himself is substituted.
Iulius longinus pater eos, quos sibi heredes instituerat, filio ita substituit " quisquis sibi heres esset": unus ex heredibus institutis, qui tacitam fidem accommodaverat, ut non capienti partem ex eo quod acceperat daret, ad substitutionem impuberis admissus utrum pro ea parte, pro qua scriptus fuit, veniat, an vero pro ea quam cepit, ita ut augeatur eius pars in substitutione? respondi: qui in fraudem legum fidem accommodat, adeundo heres efficitur nec desinet heres esse, licet res quae relictae sunt auferuntur. unde et ex secundis tabulis in tantum heres esse potest, in quantum scriptus esset: satis enim punitus est in eo, in quo fecit contra leges.
Julius Longinus the father, those whom he had instituted as his heirs, thus substituted to his son: "whoever would be heir to himself." One of the instituted heirs, who had accommodated a tacit trust, to give to one not capable of taking a share from that which he had received, having been admitted to the substitution of the underage, whether he comes for that share for which he was written, or indeed for that which he took, such that his share is increased in the substitution? I answered: he who lends his faith in fraud of the laws, by entering upon it is made heir, nor will he cease to be heir, although the things which were left are taken away. Whence also from the second tablets he can be heir only to the extent that he was written; for he is sufficiently punished in that wherein he acted against the laws.
nay rather, even if he were to cease to be heir, I would say the same: as is to be understood in the case of one who, when he had been named heir, after he had entered upon the inheritance was reduced into slavery and afterwards was granted freedom. to him it was permitted to come to the substitution which had been left to him in the testament: for although he lost the inheritance from the institution, nevertheless from the substitution he will receive that portion, to the extent that he lost.
Lucius titius legitimum filium et alterum naturalem heredes instituit eosque invicem substituit: titianus legitimus filius, quem pater anniculum reliquit, post patris mortem impubes decessit superstite matre et fratre naturali, quem etiam coheredem habebat: quaero an hereditas eius ad titium naturalem fratrem ex causa substitutionis pertineat an vero ad matrem. respondi ad primum casum non existentium heredum substitutionem de qua quaeritur pertinere, non ad sequentem, si quis eorum postea decessisset intra pubertatem, cum in naturalis filii persona duplex substitutio locum habere non poterit: et ideo ad matrem legitimi filii hereditas ab intestato pertinet.
Lucius Titius appointed as heirs his legitimate son and another, a natural son, and substituted them for one another in turn. Titianus, the legitimate son, whom his father left one year old, after his father’s death died impubes (before puberty), with his mother and his natural brother surviving, whom he also had as coheir. I ask whether his inheritance pertains to Titius, the natural brother, by reason of the substitution, or rather to the mother. I answered that the substitution about which inquiry is made pertains to the first case—namely, of heirs not existing—not to the subsequent one, if any of them had afterwards died within puberty, since in the person of a natural son a double substitution cannot have place; and therefore the inheritance of the legitimate son belongs to the mother ab intestato.
Pater familias primis tabulis postumo herede instituto secundis sibi vel filio, si intra pubertatem decessisset, gaium seium fratrem suum substituit, deinde titium gaio seio, et postea sic dixit: " quod si gaius seius frater meus primo loco substitutus heres mihi esset, tunc titio fideicommissum relinquo". quaero, cum filius patri heres exstiterit eoque intra pubertatem mortuo frater testatoris ex substitutione heres sit, an fideicommissum debeatur, cum ita relictum sit, si gaius seius frater suus sibi heres extitisset. respondi fratrem defuncti, qui in utrumque casum institutus vel substitutus est, filio impubere defuncto ea quae testator reliquit praestare debere: nec adversari haec verba " quod si gaius seius mihi heres erit, tunc dari volo", cum verum sit eum et testatori heredem exstitisse.
A paterfamilias, in the first tablets having instituted as heir a posthumous child, in the second substituted to himself or to his son—if he should die before puberty—gaius seius, his brother; then [he substituted] titius to gaius seius; and afterwards he spoke thus: "but if gaius seius, my brother, substituted in the first place, were my heir, then I leave a fideicommissum to titius." I ask, when the son has become heir to his father and, he having died before puberty, the testator’s brother is heir by substitution, whether the fideicommissum is owed, since it was left on this condition, that if gaius seius his brother had become heir to himself. I answered that the brother of the deceased, who was appointed or substituted for either contingency, upon the death of the son under age, ought to perform what the testator left; nor do these words, "but if gaius seius shall be my heir, then I will that it be given," stand in the way, since it is true that he has become heir to the testator as well.
Qui habebat filium et filiam impuberes, instituto filio herede filiam exheredavit et, si filius intra pubertatem decessisset, filiam eidem substituit: sed filiae, si antequam nuberet decessisset, uxorem suam, item sororem suam substituit. quaero, cum filia impubes prior decesserit, deinde frater eius impubes, an filii hereditas ad uxorem et sororem testatoris iure substitutionis pertineat. respondi secundum ea quae proponerentur non pertinere.
He who had a son and a daughter under age, having instituted the son as heir disinherited the daughter and, if the son should have died before puberty, substituted the daughter to him; but for the daughter, if she should have died before she married, he substituted his wife, likewise his sister. I ask, when the daughter, under age, died first, and then her brother, also under age, whether the son’s inheritance pertains to the testator’s wife and sister by right of substitution. I answered that, according to the matters proposed, it does not pertain.
Servum communem habemus: hic heres scriptus est et, si heres non sit, maevius illi substitutus est: alterius iussu dominorum adiit hereditatem, alterius non: quaeritur, an substituto locus sit an non. et verius est substituto locum esse.
We have a slave in common: he is appointed heir, and, if he should not be heir, maevius is substituted to him: at the command of one of the masters he entered upon the inheritance, at the command of the other he did not: the question is asked whether there is place for the substitute or not. and the truer view is that there is place for the substitute.
" titius heres esto. stichum maevio do lego: stichus heres esto. si stichus heres non erit, stichus liber heresque esto". in hac quaestione in primis quaerendum est, utrum unus gradus sit an duo, et an causa mutata sit substitutionis an eadem permaneat.
" let titius be heir. i give and bequeath stichus to maevius: let stichus be heir. if stichus will not be heir, let stichus be free and heir". in this question, first of all one must inquire whether there is one degree or two, and whether the cause of substitution has been changed or remains the same.
and indeed in very many cases it is asked whether he can be substituted to himself, and it is answered that, the cause of the institution having been changed, he can be substituted. therefore, if Titius has been written heir and, if he is not heir, the same person has been ordered heir, the substitution will be of no moment. but if someone has been written heir under a condition, while he has been substituted purely, the cause is altered, since the condition in the institution can fail and the substitution can bring something; but if the condition shall have come to pass, there are two pure [appointments], and therefore the substitution will be of no moment.
On the contrary, if someone is instituted purely, and then is substituted to himself under a condition, the conditional substitution does nothing, nor is it to be understood as changed, since even if the condition comes to pass, there are two pure institutions. According to these, let the proposed question be made clear: " titius shall be heir. I give and bequeath Stichus to Maevius: let Stichus be heir.
"if Stichus will not be heir, let Stichus be free and heir." We have learned that, since in the same testament Stichus is both a legatee and has received liberty, liberty prevails; and, if liberty prevails, the legacy is not owed, and therefore by the order of the legatee he cannot enter upon the inheritance, and through this it is true that Stichus is not heir, and from the following words liberty pertains to him: since one step is seen. What then, if Titius does not enter? By the substitution Stichus will begin to be free and heir.
furthermore, so long as he does not enter by the legatee’s order, neither is he understood to have been made the legatee’s by reason of the legacy; and therefore it is certain that he is not the heir, and accordingly from these words: "if he is not heir, let Stichus be free and heir," he will be free and heir. moreover, what we hold, Julian also proves in his books.
Si pupillus substitutum sibi servum alienaverit eumque emptor liberum heredemque instituerit, numquid iste in substitutione habeat substitutum universum? ut, si quidem pupillus ad pubertatem pervenerit, necessarius ex testamento emptoris heres exstitit, sin vero intra pubertatem decesserit, ex substitutione quidem liber et heres sit et necessarius patri pupilli, emptori autem voluntarius heres exstitit.
If a pupil has alienated a slave substituted to himself, and the buyer has made him free and instituted him heir, does this man, under the substitution, hold the entire estate as universal substitute? so that, if indeed the pupil reaches puberty, he stands as a necessary heir under the will of the purchaser; but if he dies before puberty, then by virtue of the substitution he is free and heir and a necessary heir to the pupil’s father, whereas to the purchaser he stands as a voluntary heir.
Si testamento comprehensum sit: " ille servus, si meus erit" ( aut " qui meus erit") " cum moriar, heres esto", quatenus accipiatur " meus", quaeritur. et si quidem alienavit in eo usum fructum, nihilo minus ipsius est: si vero partem in eo alienavit, an deficiat condicio institutionis, quaeritur. et verius est non defecisse condicionem, nisi evidentissimis probationibus testatorem voluisse apparuerit pro hac condicione haec verba inseruisse " si totus servus in dominio eius remanserit": tunc enim parte alienata condicio deficit.
If it has been included in the will: "that slave, if he will be mine" (or "who will be mine") "when I die, let him be heir," the extent to which "mine" is to be understood is in question. And if indeed he has alienated the usufruct in him, nevertheless he remains his; but if he has alienated a part in him, it is asked whether the condition of the institution fails. And the truer view is that the condition has not failed, unless by the most evident proofs it has appeared that the testator wished to insert these words for this condition, "if the whole slave shall have remained in his ownership": for then, a part having been alienated, the condition fails.
Sed si duo servi ita sint heredes instituti: " primus et secundus, si mei erunt cum moriar, liberi et heredes sunto" et alter ex his sit alienatus, celsus recte putat sic accipiendum, atque si singulos separatim sub eadem condicione heredes instituisset.
But if two slaves have been instituted heirs in this way: " the first and the second, if they will be mine when I die, let them be free and heirs," and one of these has been alienated, Celsus rightly thinks it is to be understood thus, as if he had instituted each separately as heir under the same condition.
Si qui ita sint instituti: " si socii una bonorum meorum permanserint usque ad annos sedecim, heredes sunto", inutilem esse institutionem secundum verborum significationem Marcellus ait: iulianus autem, quoniam et ante aditam hereditatem iniri societas potest quasi rei futurae, valere institutionem, quod est verum.
If any have been instituted in this way: "if the partners shall together remain in the holding of my goods up to 16 years, let them be heirs," Marcellus says the institution is useless according to the signification of the words: but Julian, since even before the inheritance is entered upon a partnership can be entered into, as it were, concerning a future thing, says the institution is valid—which is true.
Idem iulianus scribit eum, qui ita heres institutus est, si servum hereditarium non alienaverit, caventem coheredi implere condicionem: ceterum si solus heres scriptus sit, sub impossibili condicione heredem institutum videri: quae sententia vera est.
The same Julian writes that one who is thus instituted heir, on the term that he not alienate a hereditary slave, must, by giving security to the coheir, fulfill the condition; but if he is written as sole heir, he is considered to have been instituted heir under an impossible condition: which opinion is true.
Si quis sub condicione heredes instituisset, si invicem cavissent se legata eo testamento relicta reddituros, placet remitti eis condicionem, quia ad fraudem legum respiceret, quae vetarent quosdam legata capere: quamquam et si cautum esset, in ipsa actione exceptione tuendus esset promissor.
If someone had instituted heirs under a condition, namely, if they had mutually given security that they would return the legacies left by that testament, it is held that the condition is remitted to them, because it would look to a fraud upon the laws, which forbade certain persons to take legacies: although even if it had been provided, the promisor ought to be protected in the action itself by an exception.
Quae sub condicione iurisiurandi relinquuntur, a praetore reprobantur: providit enim, ne is, qui sub iurisiurandi condicione quid accepit, aut omittendo condicionem perderet hereditatem legatumve aut cogeretur turpiter accipiendi condicionem iurare. voluit ergo eum, cui sub iurisiurandi condicione quid relictum est, ita capere, ut capiunt hi, quibus nulla talis iurisiurandi condicio inseritur, et recte: cum enim faciles sint nonnulli hominum ad iurandum contemptu religionis, alii perquam timidi metu divini numinis usque ad superstitionem, ne vel hi vel illi aut consequerentur aut perderent quod relictum est, praetor consultissime intervenit. etenim potuit is, qui voluit factum, quod religionis condicione adstringit sub condicione faciendi relinquere: ita enim homines aut facientes admitterentur aut non facientes deficerentur condicione.
Things that are left under a condition of oath‑swearing are disapproved by the praetor: for he provided that one who has received something under the condition of an oath should not, either by omitting the condition, lose the inheritance or the legacy, or be compelled, shamefully, to swear to the condition of accepting. He therefore wished that the person to whom something is left under a condition of oath‑swearing should take it as those take it to whom no such condition of oath‑swearing is inserted—and rightly: since some men are easy to swear through contempt of religion, while others are extremely timid through fear of the divine numen, even to superstition, lest either these or those should either obtain or lose what has been left, the praetor intervened most advisedly. For indeed he who wanted a deed, which he binds by a condition of religion, could leave it under a condition of doing: thus men, if doing, would be admitted by the condition, or, if not doing, would be made to fail by the condition.
Sed si sub iurisiurandi condicione sit institutus aut si decem milia dederit, hoc est alternata condicione, ut aut pareat condicioni aut iuret aliud quid, videndum, numquid remitti ei condicio non debet, quia potest alteri condicioni parendo esse securus. sed est verius remittendam condicionem, ne alia ratione condicio alia eum urgueat ad iusiurandum.
But if he is instituted under the condition of an oath, or if he has given ten thousand—this is an alternative condition, so that either he comply with the condition or swear something else—it must be examined whether perhaps the condition ought not to be remitted to him, since by obeying the other condition he can be secure. But it is more correct that the condition be remitted, lest in another way one condition or the other press him to an oath.
Mortuo autem vel manumisso sticho vivo testatore qui ita heres institutus est, si iurasset se stichum manumissurum, non videbitur defectus condicione heres, quamvis verum sit compellendum eum manumittere, si viveret. idem est et si ita heres institutus esset quis: " titius heres esto ita, ut stichum manumittat" aut " titio centum ita lego, ut stichum manumittat". nam mortuo sticho nemo dicet summovendum eum: non videtur enim defectus condicione, si parere condicioni non possit: implenda est enim voluntas, si potest.
However, if Stichus has died or been manumitted while the testator is alive, the one thus instituted heir, if he had sworn that he would manumit Stichus, will not be seen as an heir failed by the condition, although it is true that he would be compelled to manumit him, if he were alive. The same holds also if someone were instituted heir thus: " titius is to be heir on this condition, that he manumit Stichus" or " to titius I bequeath one hundred on this condition, that he manumit Stichus". For with Stichus dead no one will say that he must be removed: for he does not seem to have failed the condition, if he cannot comply with the condition: for the intention is to be implemented, if it can be.
De hoc iureiurando remittendo non est necesse adire praetorem: semel enim in perpetuum a praetore remissum est nec per singulos remittendum. et idcirco ex quo dies legati cesserit, remissum videtur etiam ignorante scripto herede. ideoque in herede legatarii recte probatur, ut post diem legati cedentem si decesserit legatarius, debeat heres eius actione de legato uti, quasi pure legato relicto ei cui heres exstiterat.
Concerning the remitting of this oath, it is not necessary to approach the praetor: for once it has been remitted by the praetor, it is in perpetuity, nor is it to be remitted for individuals case by case. And therefore, from the time the day of the legacy has accrued, it is deemed remitted even if the instituted heir is unaware. And so it is rightly approved with respect to the heir of the legatee, that, after the day of the legacy has accrued, if the legatee has died, his heir ought to employ the action de legato, as if a pure legacy had been left to the one of whom he had become heir.
Institutio talis: " si codicillis seium heredem scripsero, heres esto" non est inutilis in quovis herede instituto praeter filium: est enim condicionalis institutio. nec videtur hereditas codicillis data, quod interdictum est, verum condicionalis est haec institutio, quae testamento data esset. proinde et si ita scripserit: " cuius nomen codicillis scripsero, ille mihi heres esto", pari ratione dicendum erit institutionem valere nullo iure impediente.
An institution of this kind: "if in codicils I shall have written Seius as heir, let him be heir" is not ineffectual in the case of any appointed heir except a son: for it is a conditional institution. Nor does the inheritance seem to be given by codicils, which is interdicted, but rather this institution is conditional, one which would be given by the testament. Accordingly, even if he should write thus: "whose name I shall have written in codicils, let him be my heir", by equal reasoning it will have to be said that the institution is valid, with no law impeding.
Si quem ita institutum ponamus: " ille, si eum codicillis heredem scripsi, heres esto", valet institutio etiam in filio qui in potestate est, cum nulla sit condicio, quae in praeteritum confertur vel quae in praesens, veluti " si rex parthorum vivit", " si navis in portu stat".
If we set someone as instituted thus: "that man, if I have written him as heir by codicils, let him be heir," the institution is valid even in a son who is under power, since there is no condition which is referred to the past or to the present, for example, "if the king of the Parthians lives," "if the ship stands in port."
Si quis testamento hoc modo scripserit: " filius meus si titium adoptaverit, heres esto: si non adoptaverit, exheres esto" et filio parato adoptare titius nolit se adrogandum dare, erit filius heres quasi expleta condicione.
If anyone has written in a will in this way: " my son, if he shall have adopted Titius, let him be heir; if he shall not have adopted, let him be disinherited," and when the son is prepared to adopt Titius is unwilling to give himself to be adrogated, the son will be heir as if the condition were fulfilled.
Verba haec: " publius maevius, si volet, heres esto", in necessario condicionem faciunt, ut, si nolit, heres non existat: nam in voluntaria heredis persona frustra adduntur, cum, etsi non fuerint addita, invitus non efficitur heres.
These words: " publius maevius, if he wishes, let him be heir", make a condition in the case of a necessary heir, so that, if he should be unwilling, he is not heir: for in the voluntary person of an heir they are added in vain, since, even if they had not been added, one unwilling does not become heir.
Ei qui ita hereditatem vel legatum accepit " si decem dederit" neque hereditas neque legatum aliter adquiri potest, quam si post impletam condicionem id egerit scriptus heres vel legatarius, per quod hereditas aut legatum adquiri solet.
For one who has thus received an inheritance or a legacy, "if he shall give ten," neither the inheritance nor the legacy can be acquired otherwise than if, after the condition has been fulfilled, the instituted heir or the legatee performs that act by which the inheritance or the legacy is accustomed to be acquired.
Condiciones contra edicta imperatorum aut contra leges aut quae legis vicem optinent scriptae vel quae contra bonos ^ bones^ mores vel derisoriae sunt aut huiusmodi quas praetores improbaverunt pro non scriptis habentur et perinde, ac si condicio hereditati sive legato adiecta non esset, capitur hereditas legatumve.
Conditions that are written contrary to the emperors’ edicts or contrary to the laws, or to enactments that obtain the place of law, or which are contrary to good morals, or are derisory, or of such kind as the praetors have disapproved, are held as not written; and the inheritance or the legacy is taken just as if the condition had not been added to the inheritance or the legacy.
Filius, qui fuit in potestate, sub condicione scriptus heres, quam senatus aut princeps improbant, testamentum infirmet patris, ac si condicio non esset in eius potestate: nam quae facta laedunt pietatem existimationem verecundiam nostram et, ut generaliter dixerim, contra bonos mores fiunt, nec facere nos posse credendum est.
A son who was in paternal power, written in as heir under a condition which the senate or the prince disapprove, invalidates his father’s testament, just as if the condition were not in his power: for deeds which wound our piety, reputation, and modesty, and, to speak generally, are done against good morals, are not to be believed to be within our ability to do.
Hac ratione et papinianus scribit, cum avia nepotem sub condicione emancipationis pro parte heredem instituit et postea codicillis scriptis hoc amplius ei legavit quam quod heredem eum instituit, repetitam videri condicionem emancipationis etiam in legato, quamvis in legato nullam, ut in hereditate, substitutionem fecisset.
On this reasoning Papinian also writes, when a grandmother instituted her grandson heir for a share under the condition of emancipation, and afterwards by written codicils bequeathed to him this further beyond what she had instituted him heir for, the condition of emancipation is deemed to be repeated also in the legacy, although in the legacy she had made no substitution, as she had in the inheritance.
Mulier, quae viro suo ex dote promissam pecuniam debebat, virum heredem ita instituerat, si eam pecuniam, quam doti promisisset, neque petisset neque exegisset. puto, si vir denuntiasset ceteris heredibus per se non stare, quo minus acceptum faceret id quod ex dote sibi deberetur, statim eum heredem futurum. quod si solus heres institutus esset in tali condicione, nihilo minus puto statim eum heredem futurum, quia adunatos condicio pro non scripta accipienda est.
A woman who owed her husband the money promised from the dowry had instituted her husband as heir on this term: if he neither sought nor exacted the money which she had promised as dowry. I think that, if the husband had given notice to the other heirs that it would not be on his part that he failed to enter as received that which was owed to him from the dowry, he would at once be heir. And if he alone had been instituted heir under such a condition, nonetheless I think he would at once be heir, because an impossible condition is to be taken as not written.
Si quis hereditarium servum iussus est manumittere et heres esse, quamvis, si manumiserit, nihil agat, tamen heres erit: verum est enim eum manumisisse: sed post aditionem libertas servo data secundum voluntatem testatoris convalescit.
If someone has been ordered to manumit a hereditary slave and to be heir, although, if he manumits, he does nothing, nevertheless he will be heir: for it is true that he has manumitted; but after entry upon the inheritance the liberty given to the slave becomes effective according to the testator’s will.
" uter ex fratribus meis consobrinam nostram duxerit uxorem, ex dodrante, qui non duxit, ex quadrante heres esto". aut nubit alteri aut non vult nubere. consobrinam qui ex his duxit uxorem, habebit dodrantem, erit alterius quadrans. si neuter eam duxerit uxorem, non quia ipsi ducere noluerunt, sed quia illa nubere noluerit, ambo in partes aequales admittuntur: plerumque enim haec condicio: " si uxorem duxerit", " si dederit", " si fecerit" ita accipi oportet, quod per eum non stet, quo minus ducat aut det aut faciat.
"whichever of my brothers shall have taken our cousin as wife, let him be heir to three-quarters (dodrans); let him who has not taken [her] be heir to a quarter (quadrans)". Either she marries another or she does not wish to marry. The one of these who has taken the cousin as wife will have three-quarters; the other’s share will be a quarter. If neither has married her—not because they themselves were unwilling to marry, but because she was unwilling to marry—both are admitted in equal shares: for, for the most part, such a condition as "if he shall have taken a wife," "if he shall have given," "if he shall have done," ought to be understood thus: that it does not depend on him, so as to prevent him from marrying or giving or doing.
" qui ex fratribus meis titiam consobrinam uxorem duxerit, ex besse heres esto: qui non duxerit, ex triente heres esto". vivo testatore consobrina defuncta ambo ad hereditatem venientes semisses habebunt, quia verum est eos heredes institutos, sed emolumento portionum eventu nuptiarum discretos.
" whoever of my brothers shall have taken my cousin Titia as wife, let him be heir from a bes (two-thirds): whoever shall not have taken her, let him be heir from a triens (one-third)". the testator being alive, the cousin having died, both, coming to the inheritance, will have half-shares (semisses), because it is true that they were appointed heirs, but differentiated in the emolument of their portions by the event of the marriage.
Si pupillus sub condicione heres institutus fuerit, condicioni etiam sine tutoris auctoritate parere potest. idemque est et si legatum ei sub condicione relictum fuerit, quia condicione expleta pro eo est, quasi pure ei hereditas vel legatum relictum sit.
If a pupil has been instituted heir under a condition, he can comply with the condition even without the authority of his tutor. And the same holds if a legacy has been left to him under a condition, because once the condition has been fulfilled, it is for him as though the inheritance or the legacy had been left to him outright.
Quidam in suo testamento heredem scripsit sub tali condicione " si reliquias eius in mare abiciat": quaerebatur, cum heres institutus condicioni non paruisset, an expellendus est ab hereditate. modestinus respondit: laudandus est magis quam accusandus heres, qui reliquias testatoris non in mare secundum ipsius voluntatem abiecit, sed memoria humanae condicionis sepulturae tradidit. sed hoc prius inspiciendum est, ne homo, qui talem condicionem posuit, neque compos mentis esset.
A certain man in his own testament wrote an heir under such a condition " if he should cast his remains into the sea": it was asked, when the instituted heir had not complied with the condition, whether he must be expelled from the inheritance. modestinus responded: the heir is more to be praised than to be accused, who did not cast the testator’s remains into the sea according to his will, but, in remembrance of the human condition, committed them to sepulture. But this must first be examined, lest the man who set such a condition were not of sound mind.
Heredi, quem testamento pure instituit, codicillis adscripsit condicionem: quaero, an ei parere necesse habeat. modestinus respondit: hereditas codicillis neque adimi potest: porro in defectu condicionis de ademptione hereditatis cogitasse intellegitur.
He appended a condition in codicils to the heir whom he had instituted unconditionally by testament: I ask whether he must obey it. Modestinus answered: an inheritance cannot be taken away by codicils; moreover, in the event of failure of the condition, he is understood to have contemplated the removal of the inheritance.
Si filius sub condicione heres erit et nepotes ex eo substituantur, cum non sufficit sub qualibet condicione filium heredem institui, sed ita demum testamentum ratum est, si condicio fuit in filii potestate, consideremus, numquid intersit, quae condicio fuerit adscripta, utrum quae moriente filio impleri non potuit, veluti " si alexandriam ierit, filius heres esto" isque romae decessit, an vero quae potuit etiam extremo vitae momento impleri, veluti " si titio decem dederit, filius heres esto", quae condicio nomine filii per alium impleri potest. nam superior quidem species condicionis admittit vivo filio nepotes ad hereditatem, qui si neminem substitutum haberet, dum moritur, legitimus patri heres exstiterit, argumentoque est, quod apud servium quoque relatum est: quendam enim refert ita heredem institutum, si in capitolium ascenderit, quod si non ascendisset, legatum ei datum, eumque antequam ascenderet mortem obisse: de quo respondit servius condicionem morte defecisse ideoque moriente eo legati diem cessisse. altera vero species condicionis vivo filio non admittit nepotes ad hereditatem, qui substituti si non essent, intestato avo heredes existerent: neque enim filius videretur obstitisse, post cuius mortem patris testamentum destituitur, quemadmodum si exheredato eodem filio nepotes, cum filius moreretur, heredes fuissent instituti.
If a son will be heir under a condition and grandsons from him are substituted, since it does not suffice that a son be instituted heir under just any condition, but only then is the testament valid if the condition was in the son’s power, let us consider whether it makes a difference what condition was appended—whether one that could not be fulfilled with the son dying, as, “if he shall go to Alexandria, let the son be heir,” and he died at Rome; or rather one that could be fulfilled even at the last moment of life, as, “if he shall give ten to Titius, let the son be heir,” which condition can be fulfilled in the son’s name through another. For the former type of condition admits the grandsons to the inheritance while the son is alive, the son who, if he had no one substituted, at the time he dies would have become his father’s legitimate heir; and as an argument there is what is reported also by Servius: for he relates that someone was instituted heir thus, if he should ascend to the Capitol, but that, if he should not ascend, a legacy was given to him; and that he died before he ascended. About this Servius answered that the condition failed by reason of death, and therefore, with him dying, the day for the legacy accrued. But the other type of condition, with the son alive, does not admit the grandsons to the inheritance, who, if they had not been substituted, would become heirs to their grandfather intestate; for the son would not be seen to have stood in the way, after whose death the father’s testament is left without effect—just as if, with that same son disinherited, the grandsons, when the son died, had been instituted heirs.
Aristo scribit non solum creditoribus, sed et heredi instituto praetorem subvenire debere hisque copiam instrumentorum inspiciendorum facere, ut perinde instruere se possint, expediet nec ne agnoscere hereditatem.
Aristo writes that the praetor ought to come to the aid not only of creditors, but also of the instituted heir, and to afford them the opportunity of inspecting the instruments, so that they may likewise be able to instruct themselves whether it will be expedient or not to acknowledge the inheritance.
Si maior sit hereditas et deliberat heres et res sunt in hereditate, quae ex tractu temporis deteriores fiunt, adito praetore potest is qui deliberat sine praeiudicio eas iustis pretiis vendere: qui possit etiam ea, quae nimium sumptuosa sint, veluti iumenta aut venalicia, item ea quae mora deteriora fiant, vendere, quique praeterea curaturus sit, ut aes alienum quod sub poena vel sub pretiosis pignoribus debeatur, solvatur.
If the estate is large and the heir is deliberating, and there are things in the estate which become worse by the lapse of time, upon application to the praetor the one deliberating can, without prejudice, sell them at just prices: he may also sell those things which are excessively costly, such as beasts of burden or slaves for sale, likewise those which become worse by delay; and he shall furthermore see to it that any debt which is owed under a penalty or under costly pledges be paid.
Ait praetor: " si pupilli pupillae nomine postulabitur tempus ad deliberandum, an expediat eum hereditatem retinere, et hoc datum sit: si iusta causa esse videbitur, bona interea deminui nisi si causa cognita boni viri arbitratu vetabo".
The praetor says: " if, in the name of a male or female ward, time shall be requested for deliberating whether it is expedient for him to retain the inheritance, and this shall have been granted: if a just cause shall seem to exist, I will forbid the goods meanwhile to be diminished, unless, the cause having been examined, it be by the discretion of a good man".
In causae autem cognitione hoc vertetur, an iusta causa sit, ut deminuere praetor permittat. ergo et funeris causa deminui permittet, item eorum quae sine piaculo non possunt praeteriri. vescendi gratia aeque deminui permittet.
But in the cognition of the case, the issue will turn on whether there is just cause for the praetor to permit a diminution. Therefore he will permit a diminution also for the sake of a funeral, likewise for those matters which cannot be passed over without piacular expiation. For the sake of eating he will equally permit a diminution.
but also where there is urgency, he ought to permit it for other causes as well: so that buildings may be patched up, lest the fields be untilled, if any money is owed under a penalty so that it may be restored, lest pledges be sold off. for other just causes too, the praetor, when approached, will permit diminution; for diminution ought not to be done without his permission.
Si plures gradus sint heredum institutorum, per singulos observaturum se ait praetor id quod praefiniendo tempore deliberationis edicit, videlicet ut a primo quoque ad sequentem translata hereditate quam primum inveniat successorem, qui possit defuncti creditoribus respondere.
If there are several degrees of instituted heirs, the praetor says that he will, for each in turn, observe what he declares by edict in predefining the time for deliberation, namely, that, with the inheritance transferred from the first to the next, he may as soon as possible find a successor who can answer the creditors of the deceased.
Qui filium libertinum habebat, heredem eum instituerat, deinde ita scripserat: " si mihi filius nullus erit, qui in suam tutelam veniat, tum dama servus liber esto": is filius pupillus libertinus erat: quaerebatur, si dama liber esset. trebatius negat, quia filii appellatione libertinus quoque contineretur: labeo contra, quia eo loco verum filium accipi oportet. trebatii sententiam probo, si tamen testatorem de hoc filio locutum esse apparet.
He who had a freedman son had instituted him heir, then had written thus: " if I shall have no son who comes into his own guardianship, then let dama the slave be free": that son was a freedman ward: it was asked whether dama would be free. trebatius denies it, because under the appellation of “son” a freedman too is contained: labeo the contrary, because in that place a true son ought to be understood. I approve trebatius’s opinion, if, however, it appears that the testator was speaking about this son.