Justinian•DIGESTA
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Dig. 37.3.0. De bonorum possessione furioso infanti muto surdo caeco competente.
37.2.0. If the tablets of the will are extant.
Dig. 37.3.0. On the possession of goods competent to a madman, an infant, a mute, a deaf person, a blind person.
Dig. 37.6.0. De collatione bonorum.
37.5.0. On legacies to be rendered against the tablets, possession of the goods having been sought.
Dig. 37.6.0. On the collation of goods.
Dig. 37.9.0. De ventre in possessionem mittendo et curatore eius.
37.8.0. On joining his children with the emancipated person.
Dig. 37.9.0. On putting the unborn (venter) into possession and its curator.
Dig. 37.12.0. Si a parente quis manumissus sit.
37.11.0. On possession of the goods according to the tablets.
Dig. 37.12.0. If someone has been manumitted by a parent.
Dig. 37.15.0. De obsequiis parentibus et patronis praestandis.
37.14.0. On the right of patronage.
Dig. 37.15.0. On the duties of obedience and deference to be rendered to parents and patrons.
Bona autem hic, ut plerumque solemus dicere, ita accipienda sunt universitatis cuiusque successionem, qua succeditur in ius demortui suscipiturque eius rei commodum et incommodum: nam sive solvendo sunt bona sive non sunt, sive damnum habent sive lucrum, sive in corporibus sunt sive in actionibus, in hoc loco proprie bona appellabuntur.
But “goods” here, as we are for the most part accustomed to say, are to be understood thus: as the universal succession of anyone, whereby one succeeds into the right of the deceased and takes on both the advantage and the disadvantage of the matter; for whether the goods are solvent or not, whether they bear loss or profit, whether they are in corporeal things or in actions, in this place they will properly be called “goods.”
Hereditatis autem bonorumve possessio, ut labeo scribit, non uti rerum possessio accipienda est: est enim iuris magis quam corporis possessio. denique etsi nihil corporale est in hereditate, attamen recte eius bonorum possessionem adgnitam labeo ait.
But the possession of an inheritance or of goods, as Labeo writes, is not to be understood as the possession of things is: for it is a possession more of law than of body. Finally, although there is nothing corporeal in an inheritance, nevertheless Labeo says that the bonorum possessio of it is rightly recognized.
A municipibus et societatibus et decuriis et corporibus bonorum possessio adgnosci potest. proinde sive actor eorum nomine admittat sive quis alius, recte competet bonorum possessio: sed et si nemo petat vel adgnoverit bonorum possessionem nomine municipii, habebit municipium bonorum possessionem praetoris edicto.
Possession of the estate can be recognized for municipal citizens and for societies, decuries, and bodies corporate. Accordingly, whether their agent makes the application in their name or someone else does, bonorum possessio will properly lie; but even if no one seeks or acknowledges bonorum possessio in the name of the municipium, the municipium will have bonorum possessio by the praetor’s edict.
Adquirere quis bonorum possessionem potest vel per semetipsum vel per alium. quod si me non mandante bonorum possessio mihi petita sit, tunc competet, cum ratum habuero id quod actum est. denique si ante decessero quam ratum habeam, nulla dubitatio est quin non competet mihi bonorum possessio, quia neque ego ratum habui neque heres meus ratum habere potest, cum ad eum non transeat ius bonorum possessionis.
One can acquire bonorum possession either through oneself or through another. But if, without my giving a mandate, bonorum possession has been sought for me, then it will be available when I have ratified what has been done. And finally, if I die before I ratify it, there is no doubt that bonorum possession will not be available to me, because neither did I ratify it, nor can my heir ratify it, since the right of bonorum possession does not pass to him.
Sed cum patrono quidem contra tabulas certae patris bonorum possessionem praetor polliceatur, scripto autem heredi secundum tabulas alterius partis: convenit non esse ius adcrescendi. igitur non petente scripto secundum tabulas alterius quoque partis nominatim patrono possessionem pollicetur, cum ceteri, quibus adcrescendi ius est, semel debent adgnoscere bonorum possessionem.
But when to the patron the praetor indeed promises the bonorum possession of a certain share against the tablets, but to the written heir, according to the tablets, of the other share: it is agreed that there is no right of accretion. Therefore, if the written heir does not petition, he promises, according to the tablets, possession also of the other share by name to the patron, since the others, who have a right of accretion, ought to acknowledge the bonorum possession once.
Bonorum possessionis beneficium multiplex est: nam quaedam bonorum possessiones competunt contra voluntatem, quaedam secundum voluntatem defunctorum, nec non ab intestato habentibus ius legitimum vel non habentibus propter capitis deminutionem. quamvis enim iure civili deficiant liberi, qui propter capitis deminutionem desierunt sui heredes esse, propter aequitatem tamen rescindit eorum capitis deminutionem praetor. legum quoque tuendarum causa dat bonorum possessionem.
The benefit of the possession of goods is manifold: for certain possessions of goods accrue against the will, certain according to the will of the deceased, and likewise to those from intestacy who have the lawful right or do not have it on account of capitis deminution. For although by the civil law the children fail who, because of capitis deminution, have ceased to be their own heirs, nevertheless on account of equity the praetor rescinds their capitis deminution. He also gives possession of goods for the sake of safeguarding the laws.
In bonorum possessionibus iuris ignorantia non prodest, quo minus dies cedat, et ideo heredi instituto et ante apertas tabulas dies cedit. satis est enim scire mortuum esse seque proximum cognatum fuisse copiamque eorum quos consuleret habuisse: scientiam enim non hanc accipi, quae iuris prudentibus sit, sed eam, quam quis aut per se habeat aut consulendo prudentiores adsequi potest.
In matters of bonorum possessio, ignorance of law does not avail to prevent the day from accruing; and therefore the day accrues to the instituted heir even before the tablets are opened. For it is enough to know that he has died, and that one was oneself the nearest cognate, and to have had the opportunity of those whom one might consult: for “knowledge” is not taken to mean that which belongs to jurists, but that which a person either has by himself or can obtain by consulting those more prudent.
Edicto praetoris bonorum possessio his denegatur, qui rei capitalis damnati sunt neque in integrum restituti sunt. rei autem capitalis damnatus intellegitur is, cui poena mors aut aquae et ignis interdictio sit. cum autem in relegationem quis erit, ad bonorum possessionem admittitur.
By the praetor’s edict, bonorum possessio (possession of goods) is denied to those who have been condemned on a capital charge and have not been restored in full to their former condition. One is understood to be condemned on a capital charge if the penalty is death or interdiction from water and fire. However, when someone is in relegation, he is admitted to bonorum possessio.
Cum quidam propinquus falsum testamentum accusaret ac post longum spatium temporis probasset, licet dies ei petendae possessionis, quam forte certus accusationis petere debuit, cessisse videtur, attamen quia hoc proposito accusationem instruit, ut suum ius sibi servet, adgnovisse successionem non immerito videbitur.
When a certain kinsman was accusing a false testament and, after a long space of time, had proved it, although the day for him to seek possession—which perhaps within a definite time from the accusation he ought to have sought—seems to have lapsed, nevertheless, because with this purpose he set up the accusation, namely that he might preserve his own right for himself, he will be seen, not without reason, to have acknowledged the succession.
Heredi, cuius nomen inconsulto ita deletum sit, ut penitus legi non possit, dari bonorum possessio minime potest, quia ex coniectura non proprie scriptus videretur, quamvis, si post prolatas tabulas deletum sit testamentum, bonorum possessio competat. nam et si mortis tempore tabulae fuerint, licet postea interierint, competet bonorum possessio, quia verum fuit tabulas exstare.
To an heir whose name has been erased inadvertently in such a way that it cannot be read at all, bonorum possessio can in no way be granted, because from conjecture he would not seem to have been properly inscribed—although, if after the tablets have been produced the testament has been erased, bonorum possessio is competent. For even if at the time of death the tablets existed, although afterwards they have perished, bonorum possessio will be competent, because it was true that the tablets existed.
Furioso titius substitutus est: bonorum possessionis tempus, quamdiu furiosus in eadem condicione est, neque instituto neque substituto cedit. nec, si curator furiosi nomine possessionem accipere potest, idcirco spatium temporis, quod scientibus praefinitum est, videbitur cedere: nam et pater infanti filio possessionem accipit, quo tamen cessante infans non excluditur. quid ergo, si curator accipere nolit?
Titius has been substituted to an insane person: the time for the possession of the goods, so long as the insane person remains in the same condition, does not run either against the instituted heir or against the substitute. Nor, even if a curator can accept the possession in the name of the insane person, will the space of time which is pre‑fixed for those who are aware be deemed to run; for a father also accepts possession for his infant son, yet with him failing, the infant is not excluded. What then, if the curator is unwilling to accept?
Will it not be more just and more useful that, in the same manner, possession be given to each nearest next-of-kin, lest the goods lie idle? This being admitted, the substitute is compelled to furnish a caution (security) to all those to whom the goods ought to be restored, if perchance the instituted heir should have died in the same madness, or, having become compos mentis, should have met his death before he acknowledged the inheritance. For it can also happen that, while the madman is alive, the substitute dies, and yet the madman does not stand in the way of the others, if he too has died before he would have acquired the inheritance.
Et sui iuris factos liberos inducit in bonorum possessionem praetor ( sive igitur emancipati sunt sive alias exierunt de patris potestate, admittuntur ad bonorum possessionem): sed adoptivi patris non potest: ut enim admitti possit, ex liberis esse eum oportet.
And the praetor introduces children who have been made sui iuris into possession of the goods (accordingly, whether they have been emancipated or have otherwise gone out of the father’s power, they are admitted to possession of the goods): but he cannot do so in the case of an adoptive father: for, in order that one may be admitted, it is necessary that he be among the children.
Qui habebat filium, habebat et nepotem ex eo, filium emancipavit et adoptavit in locum nepotis, deinde emancipavit: quaeritur an nepoti obstet. et mihi magis videtur hunc nepotem non excludi, sive pater eius in adoptione mansisset quasi nepos sive emancipatus est: puto enim et emancipato patre nepotem quoque cum patre suo ex edicto admitti.
He who had a son had also from him a grandson; he emancipated the son and adopted him in the place of the grandson, then emancipated him: it is asked whether this stands in the way of the grandson. And it seems to me rather that this grandson is not excluded, whether his father remained in the adoption as if a grandson or was emancipated: for I think that, even with the father emancipated, the grandson also, together with his father, is admitted by the edict.
Si duos habens nepotes alterum emancipatum loco filii adoptaverit, videndum, an solus ille quasi filius admittatur: quod ita scilicet procedit, si quasi patrem eius nepotis, quem retinuerat, sic adoptaverit: melius est autem dicere posse eum solum ad bonorum possessionem pervenire.
If, having two grandsons, he has adopted the one who was emancipated in the place of a son, it must be considered whether that one alone is admitted as if a son: which, namely, proceeds thus, provided that he has adopted him as though he were the father of that grandson whom he had retained; but it is better to say that he alone can attain to the possession of the goods.
Si quis post emancipationem quaesitum sibi filium patri suo in adoptionem dederit in locum filii, aequissimum est ei praestari quod cuivis adrogato filio, idcircoque patri suo iungendus est. sed si emancipatus hic nepos post adoptionem proponatur, aequissimum erit eum abstinere ( recipit enim locum suum) nec debet patri suo iungi.
If someone, after emancipation, has given a son acquired for himself to his own father into adoption in the place of a son, it is most equitable that there be afforded to him what is afforded to any adrogated son, and accordingly he is to be joined to his father. But if this grandson, having been emancipated, is put forward after the adoption, it will be most equitable that he abstain (for he recovers his own place) and he ought not to be joined to his father.
Si emancipatus filius uxore non ex voluntate patris ducta filium fuerit sortitus, dein nepos patre iam mortuo ad bonorum possessionem avi velit venire, admittendus est ad eam: non enim per rescissionem is, qui filius iustus est, efficietur non filius, cum rescissio, quo magis admittantur, non quo minus, adhibeatur. nam etsi tam ignominiosam duxerit uxorem filius, ut dedecori sit tam ipsi quam patri mulierem talem habere, dicemus et ex ea natum ad bonorum possessionem avi admitti, cum possit avus iure suo uti eumque exheredare: nec enim minus in hoc nepote is, qui de inofficioso cogniturus est, quam merita nepotis patris eius delicta perpendet.
If an emancipated son, having taken a wife not with his father’s consent, has begotten a son, then if the grandson, his father now dead, wishes to come to the possession of the goods of the grandfather, he is to be admitted to it: for by rescission he who is a legitimate son will not be made not a son, since rescission is employed so that they may be admitted the more, not the less. For even if the son has married so ignominious a wife that it is a disgrace both to himself and to his father to have such a woman, we shall say that one born from her too is admitted to the possession of the goods of the grandfather, since the grandfather can exercise his right and disinherit him: for he who is going to take cognizance concerning an inofficious [will] will weigh, in the case of this grandson, no less the merits of the grandson than the offenses of his father.
Si quis filio suo emancipato nepotem, quem ex eo retinuerat, dederit in adoptionem, nepos iste ad contra tabulas bonorum possessionem avi sui admittitur patre eius ante defuncto, quia in eius est familia, qui et ipse admitti potuit ad bonorum possessionem contra tabulas.
If someone, his own son having been emancipated, has given in adoption the grandson whom he had retained from him, this grandson is admitted to the possession of the goods against the will of his grandfather, his father having predeceased, because he is in the familia of the one who himself also could have been admitted to the possession of the goods against the will.
Si pater alicuius pervenerit in adoptivam familiam, filius non, an patris sui in adoptiva familia mortui bonorum possessionem accipere possit? et arbitror humaniorem esse hanc sententiam, ut filius hic, quamvis non sit in eadem familia, in qua pater, ad bonorum possessionem tamen eius admittatur.
If someone’s father has come into an adoptive family, but the son has not, can he receive possession of the estate of his father, deceased in the adoptive family? And I consider this opinion more humane: that this son, although he is not in the same family as his father, nevertheless be admitted to the possession of his estate.
Si quis ex liberis heres scriptus sit, ad contra tabulas bonorum possessionem vocari non debet: cum enim possit secundum tabulas habere possessionem, quo bonum est ei contra tabulas dari? plane si alius committat edictum, et ipse ad contra tabulas bonorum possessionem admittetur.
If any one of the children has been written as heir, he ought not to be called to the possession of the estate “against the tablets” (i.e., contrary to the will): for since he can have possession “according to the tablets,” what good is it that “against the tablets” be given to him? Clearly, if another incurs the edict, he too will be admitted to the possession of the estate “against the tablets.”
Si sub ea condicione filius emancipatus heres sit institutus, quae in ipsius potestate non est, quia scriptus heres est, bonorum possessionem secundum tabulas accipere potest et debet, nec contra tabulas potest: et si forte defecerit condicio, tuendus erit a praetore in tantum, quantum ferret, si contra tabulas bonorum possessionem accepisset.
If under that condition an emancipated son has been instituted heir, which is not in his own power, since he is a written heir, he can and ought to accept possession of the estate according to the tablets, nor can he do so contrary to the tablets; and if perchance the condition should fail, he will be protected by the praetor to the extent to which he would be, if he had accepted bonorum possessio contrary to the tablets.
Illud notandum est, quod bonorum possessio contra tabulas quae liberis promittitur locum habet, sive quis heres exstiterit sive non: et hoc est quod dicimus contra ipsum testamentum liberis competere bonorum possessionem: quod in patrono contra est.
It must be noted that the bonorum possessio against the tablets, which is promised to children, has place whether someone has emerged as heir or not: and this is what we say, that bonorum possessio pertains to the children against the testament itself; whereas in the case of a patron the contrary holds.
Si quis filium quem in potestate habuit instituerit heredem vel exheredaverit et ex eo nepotem omiserit, bonorum possessioni locus non est, quia non esset nepos suus heres futurus. eadem sunt et in sequentibus gradibus.
if someone has instituted as heir a son whom he had in his power, or has disinherited him, and has omitted the grandson from that son, there is no room for the grant of possession of the estate, because the grandson would not be a proper heir in line to inherit. the same holds also in the subsequent degrees.
Si quis eum qui in utero est praetermiserit, etiam nondum nato eo alius qui heres institutus est bonorum possessionem contra tabulas admittere potest, quia iniquum est neque quasi scriptum posse petere bonorum possessionem, quamdiu contra tabulas peti potest, nec contra tabulas, quamdiu non nascitur praeteritus: ut et si ante moriatur, bonorum possessionis beneficium ad heredem transmittat. quod maxime necessarium est in filio emancipato scripto herede, qui nec hereditatem interim adire potest.
If someone has passed over him who is in the womb, even before he is born another who has been instituted as heir can be admitted to possession of the goods against the tablets, because it is unjust that he should be able neither to seek possession of the goods as if written, so long as it can be sought against the tablets, nor against the tablets, so long as the passed-over one is not born: so that also, if he should die beforehand, he may transmit the benefit of possession of the goods to his heir. This is especially necessary in the case of an emancipated son written as heir, who in the meantime cannot enter upon the inheritance.
Si filius emancipatus in adoptiva familia nepotem sustulerit, ne nepos quidem ad bonorum possessionem avi naturalis veniet. sed et si emancipatus filius procreatis nepotibus in adoptionem se dederit, ut eum filii sequantur, idem erit. plane si is, qui apud adoptivum avum procreatus est, emancipatus sit, veniet ad bonorum possessionem avi naturalis.
If an emancipated son, being in an adoptive family, has taken up (acknowledged) a grandson, not even the grandson will come to the possession of the goods of the natural grandfather. But also, if an emancipated son, with grandsons begotten, should give himself into adoption, so that his sons may follow him, it will be the same. Clearly, if he who was begotten in the household of an adoptive grandfather be emancipated, he will come to the possession of the goods of the natural grandfather.
adoption harms only so long as one is in an alien family. moreover, an emancipated person comes to the possession of the goods of his natural parents, but only if emancipated while they are alive, not also after their death: for this is more correct, that after their death an emancipated person is not admitted.
Non putavit praetor exheredatione notatos et remotos ad contra tabulas bonorum possessionem admittendos, sicuti nec iure civili testamenta parentium turbant: sane si velint inofficiosi querellam instituere, est in ipsorum arbitrio.
The praetor did not think that those branded by disinheritance and excluded ought to be admitted to possession of the estate contrary to the will, just as neither under the civil law do they disturb the testaments of parents: indeed, if they wish to institute the complaint of inofficiousness, that lies in their discretion.
Aliqua parte tabularum exheredem scribi non sufficit, sed eo gradu, contra quem petitur bonorum possessio. unde si a primo gradu exheredatus sit filius, a secundo praeteritus et primo gradu scripti non petierint bonorum possessionem, poterit contra tabulas accipere bonorum possessionem.
It does not suffice that one be written as disinherited in some part of the tablets, but in that degree against which possession of goods is sought. Whence, if a son has been disinherited in the first degree, and passed over in the second, and those written in the first degree have not sought possession of goods, he will be able to receive possession of goods against the tablets.
A primo gradu praeteritus est filius, a secundo exheredatus. si in primo gradu scripti non sint in rebus humanis mortis tempore testatoris, dicendum est contra tabulas bonorum possessionem praeteritum petere non posse: hereditas enim in secundo gradu versatur, non in primo, ex quo neque adiri hereditas neque bonorum possessio peti potest. sed si post mortem testatoris decesserint heredes scripti, idem Marcellus putat contra tabulas bonorum possessionem semel natam competere.
From the first degree the son is passed over; from the second he is disinherited. If in the first degree the appointed heirs were not among the living at the time of the testator’s death, it must be said that the one passed over cannot seek bonorum possessio against the will (contra tabulas): for the inheritance turns upon the second degree, not the first, from which neither can the inheritance be entered upon nor can bonorum possessio be sought. But if, after the testator’s death, the appointed heirs have died, that same Marcellus thinks that bonorum possessio against the will, once arisen, is available.
But also, if the condition of the institution fails, he says just the same that a son passed over in that degree will seek possession of the goods against the tablets; he writes the same also if a posthumous child, who had been appointed, was not born: for still the bonorum possessio contra tabulas is available to the son, Marcellus says.
Si quis sua manu se exheredem scripsit, an contra tabulas bonorum possessionem possit accipere, videamus. et Marcellus libro nono digestorum nocere ei hanc exheredationem ait, quia senatus hoc pro non scripto non facit, quod contra eum est.
If someone, with his own hand, wrote himself as disinherited, let us consider whether he can receive possession of the estate contrary to the will (contra tabulas). And Marcellus, in the ninth book of the Digests, says that this disinheritance harms him, because the senate does not treat as “not written” that which is against him.
In adoptionem datos filios non summoveri praetor voluit, modo heredes instituti sint, et hoc iustissime eum fecisse labeo ait: nec enim in totum extranei sunt. ergo si fuerunt heredes scripti, accipient contra tabulas bonorum possessionem, sed ipsi soli non committent edictum, nisi fuerit alius praeteritus ex liberis qui solent committere edictum. sed si ipse scriptus non sit, sed alius, qui ei adquirere hereditatem potest, non est in ea causa, ut eum ad bonorum possessionem contra tabulas admittamus.
As to sons given into adoption, the praetor did not wish them to be removed, provided they have been instituted as heirs; and Labeo says he did this most justly, for they are not altogether extraneous. Therefore, if they have been written as heirs, they will receive possession of the goods against the tablets; but they themselves alone do not set the edict in motion, unless there is another, passed over, from among the children who are wont to set the edict in motion. But if he himself has not been written, but another, who can acquire the inheritance for him, he is not in such a case that we admit him to possession of the goods against the tablets.
Ut autem admittantur ad bonorum possessionem, ex liberis esse eos oportet. ceterum si adoptivum filium dedi in adoptionem et heredem scripsi, commisso per alios edicto bonorum possessio contra tabulas ei non dabitur.
But for them to be admitted to the possession of the goods, it is requisite that they be of the children. moreover, if I have given an adoptive son into adoption and have written him as heir, when the edict is set in motion by others, the possession of the goods against the tablets will not be given to him.
Non est novum, ut emancipatus praeteritus plus iuris scriptis heredibus fratribus suis tribuat, quam habituri essent, si soli fuissent: quippe si filius qui in potestate patris est ex duodecima parte heres scribatur emancipato praeterito, dimidiam partem beneficio emancipati occupat, qui, si emancipatum fratrem non haberet, duodecimam partem habiturus esset. sed si ex parte minima sit heres institutus, non pro ea parte, qua institutus est, tuendus est commisso edicto, sed amplius per bonorum possessionem habere potest. praetori enim propositum est, cum contra tabulas bonorum possessionem dat, eas partes unicuique liberorum tribuere, quas intestato patre mortuo in hereditate habiturus esset, si in potestate mansisset: et ideo sive emancipatus sive is qui in potestatem mansit sive in adoptionem datus ex minima parte heres scriptus sit, non redigitur ad eam portionem, ex qua institutus est, sed virilem accipit.
It is not new, that a preterited emancipated son confers more right upon his brothers who are instituted heirs than they would have had if they had been alone: indeed, if a son who is in the power of his father is written heir from a twelfth part, with an emancipated son preterited, he seizes one half by the benefice of the emancipated man—he who, if he had not an emancipated brother, would have had a twelfth part. But if he has been instituted heir from the least part, he is not to be protected, under the edict that has been set in motion, for that part for which he was instituted, but he can have more through possession of the estate (bonorum possessio). For it is the praetor’s purpose, when he gives possession of the estate against the tablets (will), to assign to each of the children those shares which he would have in the inheritance with the father dead intestate, if he had remained in power: and therefore whether an emancipated son or one who remained in power or one given in adoption has been written heir from the least part, he is not reduced to that portion from which he was instituted, but receives a virile share.
Si filius in adoptionem datus avo materno heres institutus sit a patre naturali, commisso per alium edicto magis est, ut bonorum possessionem accipere possit: nec enim exigimus, ut adeat hereditatem, sed sufficit, ut ei delata sit adquirique possit.
If a son, given in adoption to his maternal grandfather, has been instituted heir by his natural father, it is more in accordance with the edict “Commissum per alium” that he can receive possession of the goods (bonorum possessio): for we do not require that he formally enter upon the inheritance, but it suffices that it has been tendered to him and can be acquired.
Illud notandum est, quod et si adierit hereditatem in adoptionem datus, contra tabulas ei datur: alias autem si quis legatum si quis portionem sibi datam adgnoverit, a contra tabulas bonorum possessione repellendus est.
It must be noted that even if, having been given in adoption, he has entered upon the inheritance, the “against the tablets” (contra tabulas) is granted to him; otherwise, however, if anyone has acknowledged a legacy or a portion given to him, he must be repelled from the bonorum possessio “against the tablets” (contra tabulas).
Hi, qui propter alios contra tabulas bonorum possessionem petunt, non exspectant ut praeteriti possessionem accipiant, verum ipsi quoque bonorum possessionem petere contra tabulas possunt: cum enim semel beneficio aliorum ad id beneficium fuerint admissi, iam non curant, petant illi nec ne bonorum possessionem.
Those who, on behalf of others, petition for possession of the goods against the tablets, do not wait for the omitted to accept possession, but they themselves also can petition for possession of the goods against the tablets: for when once by the benefit of others they have been admitted to that benefit, they no longer care whether those others petition for possession of the goods or not.
Si in adoptionem datus sub condicione scriptus sit heres a naturali patre, alio committente contra tabulas edictum et ipse veniet: sed si defecerit condicio, repellitur ab ea possessione. idem puto et in eo, qui pure quidem, sed non iure scriptus sit heres.
If one given into adoption has been written as heir under a condition by his natural father, when another sets in motion the edict “against the tablets” (i.e., against the will), he too will come; but if the condition fails, he is driven back from that possession. I think the same in the case of one who indeed is written purely (unconditionally), but not lawfully, as heir.
Si duobus filiis et ex altero filio duobus nepotibus bonorum possessio competat et alter ex nepotibus non petat, pars eius fratri adcrescit. si vero ex filiis alter non petat, tam fratri quam nepotibus id prodest: namque tunc duo semisses fiunt, ex quibus alterum filius, alterum nepotes consequuntur.
If the possession of the goods is competent to two sons and to two grandsons from one of the sons, and one of the grandsons does not apply, his share accretes to his brother. But if, indeed, one of the sons does not apply, that benefits both his brother and the grandsons: for then two half-shares are made, of which the son obtains one, the grandsons the other.
Si prius testamentum exstet iure factum, quo filius exheredatus est, sequens imperfectum, in quo praeteritus sit filius, posteriore testamento praeteritus recte petet bonorum possessionem, si remoto quoque filio potiores sunt in ea hereditate posteriore testamento scripti heredes: et ita ius habet, ut, cum is, contra quem filius petit bonorum possessionem, amoto filio possit optinere hereditatem, filius quoque recte videatur petere bonorum possessionem, si vero ille non possit optinere hereditatem, filius quoque excludatur.
If there exists a prior testament lawfully made, by which a son has been disinherited, and a subsequent imperfect one, in which the son has been passed over, the son passed over in the later testament will rightly seek possession of the goods, if, with the son also removed, the heirs written in that later testament are preferable in that inheritance: and the law has it thus, that, when the person against whom the son seeks possession of the goods can, the son being set aside, obtain the inheritance, the son too is rightly seen to seek possession of the goods; but if that person cannot obtain the inheritance, the son also is excluded.
Cum emancipatus bonorum possessionem contra tabulas accipit, scriptus heres ei hereditatem petenti cogendus est et praedia et servos hereditarios praestare: omne enim ius transferri aequum est, quod per causam hereditariam scriptus heres nanciscitur, ad eum, quem praetor heredis loco constituit.
When an emancipated son receives bonorum possession against the will, the instituted heir must be compelled, when he seeks the inheritance, to furnish both the estates and the hereditary slaves: for it is equitable that every right which the instituted heir obtains by reason of the inheritance be transferred to him whom the praetor has established in the place of the heir.
Qui duos filios et ex altero eorum nepotem habebat, eum in adoptionem dedit et heredem instituit praeterito altero filio: quaeritur, quid in his servari debeat, utrum in partem patris sui admittatur an virilem portionem habeat. respondi: in adoptionem datus nepos et heres scriptus, quamdiu pater eius aut in potestate aut emancipatus est, non potest contra tabulas bonorum possessionem accipere: sed et si pater eius, antequam bonorum possessionem acciperet, decesserit, non admittitur nepos ad bonorum possessionem.
He who had two sons and from one of them a grandson, gave him into adoption and instituted him heir, the other son having been passed over: it is asked what ought to be observed in these matters, whether he should be admitted into his father’s share or have a virile portion. I answered: the grandson given in adoption and written as heir, so long as his father is either in paternal power or emancipated, cannot receive the possession of the goods against the tablets; and even if his father, before he received the possession of the goods, has died, the grandson is not admitted to the possession of the goods.
Si pater emancipato filio praeterito heredes duos scripserit, filium quem in potestate habebat et alterum quem in adoptionem dederat, ex quo duos nepotes in familia reliquerat, qui et ipsi testamento praeteriti sint: bonorum possessionem pro parte tertia emancipatus, pro parte tertia is qui in potestate remansit, pro parte tertia qui in adoptionem datus est et filii eius simul habebunt, ita ut sextans patri, sextans nepotibus cedat.
If a father, with the emancipated son omitted, has appointed two heirs—the son whom he had in his power and another whom he had given in adoption, from whom he had left two grandsons in the family, who likewise themselves are omitted by the testament—the possession of the estate shall be had as to a third by the emancipated son, as to a third by the one who remained in power, and as to a third by the one who was given in adoption together with his sons, in such a way that a sixth goes to the father, a sixth to the grandsons.
Si pater ex duobus filiis alterum habentem filios emancipaverit et unum ex nepotibus, quem ante emancipaverat, in locum filii adoptaverit, praeterito deinde emancipato decesserit, aequius erit nepoti, qui in locum filii venerit, succurri et in tres partes hereditatem diduci, ut unam habeat qui in potestate remanserit, alteram nepos adoptatus in locum filii, tertiam emancipatus cum filio suo, qui nepotis loco fuerit. sed etsi mortuo filio alter ex nepotibus in locum filii adoptatus fuerit, tres partes in bonis fient, cum sit aequius eum, qui in locum filii adoptatus est, non minus habere, quam si non ex numero nepotum, sed extraneus adoptatus esset.
If a father, having two sons, emancipates the one who has sons, and adopts one of the grandsons—whom he had previously emancipated—into the place of a son, and then, with the emancipated one passed over, dies, it will be more equitable to give relief to the grandson who has come into the place of a son and to divide the inheritance into three parts: so that one part be held by the one who remained in his power, another by the grandson adopted into the place of a son, and the third by the emancipated man together with his own son, who was in the place of a grandson. But even if, upon the death of a son, another of the grandsons is adopted into the place of a son, three parts will be made in the estate, since it is more equitable that he who has been adopted into the place of a son should have no less than if he had been adopted not from among the number of the grandsons, but as a stranger.
Si duobus filiis emancipatis alter heres institutus sit, alter praeteritus, si institutus adierit, quamvis verbis edicti parum expressum sit, tamen non posse eum petere bonorum possessionem respondit, quia iudicium patris secutus sit: nec enim emancipatum, si legatum acceperit, admitti ad bonorum possessionem, sive ab heredibus institutis sive ab his, qui contra tabulas petierint, acceperit. sed illud observandum, ut praetor eum, qui heres institutus adierit, in eam partem qua scriptus sit tueri debeat, dum tamen non ampliorem, quam habiturus esset, si bonorum possessionem accepisset: ut hactenus deteriorem causam suam fecerit, quod, si ex minore parte sit institutus, eam dumtaxat retinere possit et quod extraneis quoque legata praestare cogatur. quod si is qui in potestate est heres institutus sit, quoniam necessarius heres fit, non aliud dici posse, quam et ipsum petere posse bonorum possessionem, si modo hereditati se non immiscuerit: tunc enim, quia iudicium patris comprobasse videtur, in eodem loco quo emancipatum haberi debere.
If, of two sons emancipated, one has been instituted heir and the other passed over, if the instituted one has entered on the inheritance, although the words of the Edict express this but little, nevertheless he answered that he cannot demand possession of the estate (bonorum possessio), because he has followed the father’s judgment: for an emancipated son also, if he has received a legacy, is not admitted to possession of the estate, whether he has received it from the instituted heirs or from those who have sought contrary to the will. But this is to be observed: that the praetor ought to protect him who, being instituted heir, has entered, to the share in which he is written, yet not a greater one than he would have had if he had accepted possession of the estate: so that he has only thus far made his case worse, that, if he has been instituted from a smaller part, he can retain that part only, and that he is compelled to discharge legacies even to strangers. But if one who is in power has been instituted heir, since he becomes a necessary heir, nothing else can be said but that he too can demand possession of the estate, provided only that he has not involved himself in the inheritance: for then, because he seems to have approved the father’s judgment, he ought to be held in the same position as an emancipated son.
Filius in adoptiva familia uxore ducta filium sustulit eumque post mortem patris adoptivi emancipavit: hunc nepotem contra tabulas avi naturalis decreto posse petere bonorum possessionem respondit. item si filius emancipatus sublato filio et emancipato adrogandum se dederit et mortuo adoptivo patre decesserit, et contra patris et contra avi tabulas ex decreto hunc admitti minime dubitari debere, ne alioquin ab omnium bonis excluderetur.
A son, in an adoptive family, having taken a wife, acknowledged a son, and after the death of the adoptive father emancipated him: he answered that this grandson could, by decree, seek possession of the goods against the tablets of his natural grandfather. Likewise, if a son, emancipated, after a son has been acknowledged and emancipated, should give himself to be adrogated and, his adoptive father having died, should himself pass away, there ought by no means to be doubt that, both against the father’s and against the grandfather’s tablets, by decree this one is to be admitted, lest otherwise he be excluded from all goods.
Si praeteritus filius emancipatus exceptionem doli mali agenti heredi patris opposuerit de eo quod patri debuit, non posse eum contra tabulas bonorum possessionem petere existimo: nam hoc ipso quasi repudiavit bonorum possessionem. quod ita intellegendum est, si heredem petentem debitum noluerit filius repellere illa exceptione " si non contra tabulas bonorum possessio filio dari potest", sed magis doli exceptione usus est.
If an omitted emancipated son has opposed the defense of fraud to the father’s heir who is suing, concerning what he owed to the father, I consider that he cannot seek possession of the goods against the will: for by this very act he has, as it were, repudiated the possession of the goods. This is to be understood thus, if the son was unwilling to repel the heir demanding the debt by that exception " si non contra tabulas bonorum possessio filio dari potest", but rather made use of the defense of fraud.
Si emancipatus filius nepoti in potestate avi relicto ab extraneo herede fideicommissam hereditatem, si liberatus avi potestate fuisset, reliquisset: si suspectus avus sit quasi consumpturus bona nepotis, non esse ei dandam bonorum possessionem.
If an emancipated son would have left to his grandson, who is in the power of the grandfather, the fideicommissary inheritance left by a stranger heir, on the condition that he had been freed from the grandfather’s power: if the grandfather is suspected as about to consume the grandson’s goods, bonorum possession is not to be given to him.
Si pater se dederit in adoptionem nec sequatur eum filius emancipatus ab eo antea factus, quia in alia familia sit pater, in alia filius, bonorum possessionem contra tabulas non potest filius eius habere: et ita iulianus scripsit. Marcellus autem ait iniquum sibi videri excludi eos a bonorum possessione, cum pater se dedit in adoptionem: ubi enim filius non datur in adoptionem, at pater se dat, nullum patrem filio adsignat: quae sententia non est sine ratione.
If a father has given himself into adoption and a son, previously emancipated by him, does not follow him, because the father is in one family and the son in another, the son cannot have the bonorum possession contrary to the tablets (i.e., contrary to the will): and thus Julian wrote. But Marcellus says it seems unjust to him that they are excluded from the bonorum possession, when the father has given himself into adoption: for where the son is not given into adoption, but the father gives himself, he assigns no father to the son: which opinion is not without reason.
Quod volgo dicitur liberis datam bonorum possessionem contra lignum esse sic intellegendum est, ut sufficiat exstitisse tabulas mortis tempore patris, ex quibus vel adiri hereditas vel secundum eas bonorum possessio peti potuit, quamvis neutrum eorum postea secutum sit vel sequi potuit: nam si vel omnes instituti substitutique ante testatorem decesserint vel is scriptus heres fuit, cum quo testamenti factio non fuit, peti contra tabulas inane est, quae sine effectu forent.
What is commonly said, that the possession of goods granted to children is against the tablet (i.e., the will), is to be understood thus: it is enough that there existed tablets at the time of the father’s death, from which either the inheritance could be entered upon or, according to them, possession of goods could be sought, although neither of those things afterwards followed nor could have followed. For if either all the instituted and substitute heirs died before the testator, or the person written as heir was one with whom there was no testamentary capacity, to seek against the tablets is vain, since they would be without effect.
Filium quem in potestate habebat exheredavit, emancipatum praeteriit: quaesitum est, quatenus emancipatus bonorum possessionem habiturus sit. dixi, si scripti heredes extranei adierint hereditatem, repellendum esse filium, qui mansit in potestate. quod si hi repudiaverint hereditatem ( quod facile sunt facturi nihil laturi ex hereditate propter eum, qui contra tabulas accepit bonorum possessionem), filius ab intestato patris suus heres deprehendetur: emancipatus autem petens contra tabulas bonorum possessionem solus habebit bonorum possessionem.
He disinherited the son whom he had in his power; the emancipated one he passed over: the question was asked to what extent the emancipated would have possession of the estate. I said that, if the extraneous heirs written in the will should enter upon the inheritance, the son who remained under power must be repelled. But if these should repudiate the inheritance (which they will readily do, bringing nothing from the inheritance on account of him who has received possession of the estate against the tablets), the son will be found to be his father’s own heir intestate; whereas the emancipated, seeking possession of the estate against the tablets, will alone have possession of the estate.
but since a disinheritance, the inheritance not having been entered upon, is of no effect under a testament ( and therefore it is no obstacle to his receiving bonorum possessio contra tabulas of the father’s freedmen; Julian rightly replied, lest the testament, being void in all respects, should seem to have accomplished anything for the note of disinheritance alone ), the matter returns to the outcome of intestacy, so that, against his own son who is heir for the whole ex intestato to the father, the praetor protects the emancipated [son] in a half share. therefore the benefit of the written heir who is a stranger will be saleable, so that, although he himself will obtain nothing by right of inheritance, by entering upon it he may repel the son left in potestas and may furnish the whole share to the emancipated son by the right of bonorum possessio contra tabulas: but if he omits the inheritance, he will in effect admit the disinherited into a portion of the goods, the law having made only his own heir (suus heres). but just as the praetor protects the emancipated, if the inheritance has not been entered upon, so neither is the son who remained in potestas, once aditio has been applied, to be expelled entirely, but he is to be admitted to an action for the inheritance on the ground of a complaint of inofficiousness to be brought against the emancipated.
Videamus tamen isto casu, quo utrique ad bona patris veniunt, an ei conferre debeat emancipatus: nam neque ex hac parte edicti verbis id facere cogitur, unde contra tabulas accepit bonorum possessionem, quae inter eos, quibus ita bonorum possessio dabitur, caveri de collatione ab emancipato iubet: iste enim qui mansit in potestate quod exheredatus nominatim fuit, non est vocatus ad bonorum possessionem contra tabulas: neque ex illa parte edicti, qua intestato patre mortuo emancipatus ad bonorum possessionem admissus ad collationem compellitur, quia etsi frater ab intestato heres sit, emancipatus tamen non inde accepit bonorum possessionem. et vereor, ne hactenus filio suo profuerit factum heredis scripti non adeuntis, ut eum ad portionem admitteret bonorum paternorum, non etiam eorum, quae emancipatus propria habuit, et hoc sit consequens illi, quod, cum ex minore parte scriptus a patre heres relictus in potestate, admisso fratre emancipato ad contra tabulas bonorum possessionem, eius beneficio plus consequatur, quamvis edicti verbis collatio inducatur, ex mente praetoris denegandam eam respondetur. multo magis autem huic conferri non oportet, quia ei a patre exheredatus, a praetore ad bonorum possessionem contra tabulas non vocatus occasione omissae hereditatis a scripto herede ( nihil habituro propter delatam emancipato a praetore contra tabulas bonorum possessionem) nomen sui heredis adeptus est.
Let us nevertheless see, in this case where both come to the father’s goods, whether the emancipated son ought to confer to him: for neither by that part of the edict is he compelled by its words to do this, under which he received bonorum possessio contra tabulas, which orders that among those to whom bonorum possessio is thus given provision be made for collation by the emancipated; for that one who remained in potestate, although he was expressly disinherited by name, is not called to bonorum possessio contra tabulas. Nor by that part of the edict by which, the father having died intestate, an emancipated son admitted to bonorum possessio is compelled to collation, because, although the brother is heir ab intestato, nevertheless the emancipated did not receive bonorum possessio on that basis. And I fear that the fact of the written heir not entering has benefitted his son only to this extent: that it admitted him to a share of the paternal goods, not also to those things which the emancipated possessed as his own; and let this be consequent to that other case, namely that, when one, written by his father as heir for a lesser part and remaining in potestate, obtains more by the benefit of an emancipated brother admitted to bonorum possessio contra tabulas, although by the words of the edict collation is introduced, yet it is responded, from the mind of the praetor, that it must be denied. Much more, moreover, ought nothing to be conferred to this man, because he, disinherited by his father, not called by the praetor to bonorum possessio contra tabulas, on the occasion of the inheritance having been omitted by the written heir (who would have nothing, because bonorum possessio contra tabulas was tendered by the praetor to the emancipated), has acquired the status of sui heres.
Legata tamen ex parte sua iste emancipatus liberis et parentibus praestare cogetur non solida, sed deminuta in dimidium, quod relinquitur manenti in potestate. sed nec adversus eum constituendae actionis legatorum ratio est, qui mero iure intestato heres exstitit.
Nevertheless, from his own share this emancipated person will be compelled to furnish legacies to the children and parents not in solidum, but diminished by one-half, the remainder being left to him who remains in power. But neither is there any ground for establishing an action for legacies against him who has become heir by the mere law of intestacy.
Sed qui accepit contra tabulas bonorum possessionem, etiamsi non fuerit adita hereditas a scripto, praestat legata ea parte testamenti data, contra quam bonorum possessio accepta est. erit ergo melior hoc casu condicio in familia relicti filii, quam foret, si exheredatus non esset.
But he who has accepted possession of the goods contra tabulas (against the tablets, i.e., against the will), even if the inheritance has not been entered upon by the instituted (written) heir, must render the legacies given in that part of the testament against which the possession of the goods has been accepted. Therefore, in this case the condition of a son left in the family will be better than it would be if he had not been disinherited.
Si is, qui filium et ex eo nepotem in potestatem habebat, filium in adoptionem dedit nepote retento in potestate, postea filius emancipatus a patre adoptivo decessit extraneis heredibus institutis: filius huius, qui in potestate avi remansit, contra tabulas patris sui bonorum possessionem petere poterit, quamvis numquam in potestate huius fuerit. ideo nec debuisse in potestate esse videtur. nam, si aliter observatur, nec si emancipatus filius fuerit, nepos ex eo, qui in potestate avi remansit, bonorum possessionem contra tabulas petere poterit.
If a man who had a son and from him a grandson in his power gave the son in adoption, with the grandson retained in his power, and afterwards the son, emancipated by his adoptive father, died with strangers appointed as heirs: the son of that man, who remained in the grandfather’s power, will be able to seek bonorum possession against his own father’s tablets (contra tabulas), although he was never in that father’s power. Therefore he also seems not to have had to be in his power. For if a different rule is observed, then not even if the son had been emancipated would the grandson from him, who remained in the grandfather’s power, be able to seek bonorum possession contra tabulas.
Idemque iuris est, si emancipato filio nepos ex eo in potestate avi remanserit et postea patri suo in adoptionem datus fuerit: id est contra tabulas avi bonorum possessionem petere poterit, quia per adoptionem in aliena familia non fuerit.
And the same rule of law holds, if, after the son has been emancipated, a grandson from him has remained in the power of the grandfather and afterwards has been given in adoption to his own father: that is, he will be able to seek the possession of the goods against the grandfather’s tablets, because by the adoption he was not in an alien family.
Hic titulus aequitatem quandam habet naturalem et ad aliquid novam, ut, qui iudicia patris rescindunt per contra tabulas bonorum possessionem, ex iudicio eius quibusdam personis legata et fideicommissa praestarent, hoc est liberis et parentibus, uxori nuruique dotis nomine legatum.
This title has a certain natural equity and in some respect a new one, namely that those who rescind the father’s judgments by the contra tabulas possession of the estate should furnish, in accordance with his judgment, legacies and fideicommissa to certain persons, that is, to children and parents, and to the wife and the daughter‑in‑law a legacy in the name of a dowry.
Generaliter parentes et liberos praetor excepit nec gradus liberorum parentiumve enumeravit: in infinitum igitur eis praestabitur. sed nec personas prosecutus est, utrum ex virili sexu an ex feminino descendent. quisquis igitur ex liberis parentibusque fuerit, ad legati petitionem admittetur, sed ita demum, si iura cognationis sunt inter eos.
Generally the praetor excepted parents and children and did not enumerate the degrees of children or of parents: therefore it will be afforded to them to an infinite extent. Nor did he specify the persons, whether they descend from the male sex or from the female. Whoever, then, is from among the children and the parents will be admitted to the petition of the legacy, but only then, if the rights of cognation exist between them.
Filium quis impuberem heredem scripsit eique substituit, emancipatum autem filium praeteriit: deinde uterque filius acceperunt bonorum possessionem: legata sunt etiam a substituto impuberis relicta non tantum liberis et parentibus, verum etiam extraneis: quaeritur, an mortuo impubere cogatur substitutus ea praestare. et si quidem ab impubere relicta sunt, solis liberis parentibusque praestanda sunt: sin vero a substituto impuberis, omnibus eum praestare oportet habita ratione legis falcidiae, scilicet ut partis dimidiae, quae ad eum ex bonis patris pervenit, quartam, id est totius assis sescunciam retineat.
Someone wrote his son under puberty as heir and appointed for him a substitute, but passed over his emancipated son; then each son accepted possession of the goods. Legacies also were left by the substitute of the under‑pubescent not only to children and parents, but even to outsiders. The question is, when the under‑pubescent has died, is the substitute compelled to provide these? And if indeed they were left by the under‑pubescent, they must be provided only to children and parents; but if by the substitute of the under‑pubescent, he ought to provide them to all, account being taken of the Law of the Falcidia, namely that of the half share which came to him from the father’s goods he retains a quarter, that is a sescuncia of the whole as (one‑eighth).
Quod si impubes ex uncia dumtaxat institutus heres fuerit, magis est semissem usque legata praestaturum habita ratione legis falcidiae: licet enim ex uncia fuerit impubes institutus, tamen quod accessit, augebit legata a substituto relicta.
But if an impubes has been instituted heir from only one ounce, it is the sounder view that he will have to render legacies up to one-half, account being had of the Lex Falcidia: for although the impubes was instituted from one ounce, nevertheless whatever has accrued will augment the legacies left by the substitute.
Omnibus autem liberis praestari legata praetor voluit exceptis his liberis, quibus bonorum possessionem praetor dedit ex causis supra scriptis: nam si dedit bonorum possessionem, non putat legatorum eos persecutionem habere. constituere igitur apud se debet, utrum contra tabulas bonorum possessionem petat an vero legatum persequatur: si elegerit contra tabulas, non habebit legatum: si legatum elegerit, eo iure utimur, ne petat bonorum possessionem contra tabulas.
But the praetor wished legacies to be provided to all the children, except those children to whom the praetor gave possession of the goods for the causes written above: for if he has given possession of the goods, he does not consider that they have the pursuit of legacies. Therefore one ought to determine with himself whether he should seek possession of the goods against the tablets (i.e., the will) or rather pursue a legacy: if he has chosen against the tablets, he will not have the legacy: if he has chosen the legacy, we employ this law, that he is not to seek possession of the goods against the tablets.
Si quis contra tabulas bonorum possessionem acceperit, deinde postea apparuerit eum ex his liberis non fuisse, qui eam bonorum possessionem accipere possunt, ex his tamen esse, quibus legata praestantur: optinuit non esse ei denegandam petitionem legatorum, sive ordinariam bonorum possessionem petierit sive carbonianam.
If someone has received possession of the estate contrary to the will, and then afterward it appears that he was not among those children who can receive that possession of the estate, yet is among those to whom legacies are paid: it has prevailed that the petition for legacies is not to be denied to him, whether he has sought the ordinary possession of the estate or the Carbonian.
Non solum autem legatum denegatur ei, qui bonorum possessionem accepit, verum etiam si quid aliud ex voluntate accepit. cui consequens est, quod iulianus scripsit, si fratri suo impuberi substitutus sit acceperitque contra tabulas bonorum possessionem, denegari ei persecutionem hereditatis fratris impuberis mortui, cui a patre substitutus est.
Not only, moreover, is a legacy denied to him who has accepted the possession of the goods, but likewise if he has received anything else under the testament. Consequent to this is what Julian wrote: if a man has been appointed as substitute to his underage brother and has accepted the possession of the goods against the tablets, the claim to the inheritance of the deceased underage brother, to whom he was appointed substitute by the father, is denied to him.
Sed et si portio hereditatis fuerit adscripta ei, qui ex liberis parentibusve est, an ei conservanda sit, ut solent legata? et iulianus saepissime scripsit in portione quoque hereditatis idem quod in legato probandum, cuius sententia rescripto divi pii comprobata est, cum hereditates non modo honestiore titulo, sed et pleniore onere tribuantur.
But also, if a portion of the inheritance has been ascribed to one who is among the children or the parents, is it to be conserved for him, as legacies are wont? And Julian very often wrote that in the case of a portion of the inheritance likewise the same is to be proved as in a legacy; whose opinion was approved by a rescript of the deified Pius, since inheritances are bestowed not only with a more honorable title, but also with a fuller burden.
Ad eum autem modum talibus personis succurrendum est, ut ampliore quidem quam virili portione hereditatis data usque ad virilem tueantur, in minorem autem eatenus actiones his tribuantur, quatenus scriptae sint. idem observatur et circa legata fideive commissa, quae his data fuerint, et in mortis causa donationibus.
But relief is to be afforded to such persons in this manner: if a share of the inheritance greater than the virile portion has been given, they are upheld up to the virile portion; but for a lesser share, actions are granted to them only to the extent that they have been written. The same is observed also with respect to legacies and fideicommissa that have been given to them, and in mortis causa donations.
Is autem, cui portio hereditatis conservatur, utrum omnibus an tantum exceptis personis legata cogatur praestare? et magis probatur exceptis personis solis praestanda: nec tamen solius commodo id cedit. nam si legatis onerata sit portio tam liberorum parentiumve quam extraneorum, id, quod extraneis non praestatur, liberis parentibusve profuturum non dubitamus.
But as for him for whom a portion of the inheritance is preserved, is he compelled to render the legacies to all, or only to the excepted persons? And it is more approved that they must be rendered to the excepted persons alone; nor, however, does this accrue to his advantage alone. For if the portion is burdened with legacies both of children or parents and of strangers, we do not doubt that what is not rendered to the strangers will benefit the children or the parents.
Salvius aristo iuliano salutem. qui filium emancipatum habebat, praeterito eo patrem suum et extraneum heredem instituit et patri legatum dedit: filius contra tabulas bonorum possessionem petit: quaero, si aut uterque hereditatem adisset aut alter ex his aut neuter, an et quantum legatorum nomine patri debeatur. respondit: saepe animadverti hanc partem edicti, qua emancipatus accepta contra tabulas bonorum possessione liberis et parentibus legata praestare iubetur, habere nonnullas reprehensiones: nam si dodrans legatus fuerit, plus habiturus est cui legatum erit quam emancipatus.
salvius aristo to iuliano, greetings. he, who had an emancipated son, having passed him over, appointed his own father and an outsider as heir and gave a legacy to his father: the son seeks bonorum possessio against the will: i ask, if either both had entered upon the inheritance or one of these or neither, whether and how much would be owed to the father under the name of legacies. he replied: i have often noticed that this part of the edict, by which an emancipated son, upon receiving bonorum possessio against the will, is ordered to perform legacies to children and parents, has some criticisms: for if three-quarters has been bequeathed, he to whom the legacy will be will have more than the emancipated son.
Therefore, by decree, these matters ought to be tempered: both that the emancipated should also provide a share of the inheritance, in such wise that the named heir have not more than the emancipated; and that the measure of legacies be tempered, so that nothing more from the legacies may come to anyone than would remain with the emancipated under the title of possession of the estate.
Nam secundum constitutionem divi pii ad tuscium fuscianum numidiae legatum placuit parentes et liberos heredes quoque institutos tueri usque ad partem virilem exemplo legatorum, ne plus haberent ex institutione tales personae, quam ad eum perventurum esset, qui contra tabulas bonorum possessionem accepit.
For, according to the constitution of the deified Pius, addressed to Tuscius Fuscianus, legate of Numidia, it was decided that parents and children, even when appointed as heirs, be protected up to the virile share, by the example of legacies, lest such persons have more from the institution than would have come to him who accepted possession of the estate against the will (bonorum possessio contra tabulas).
Virilis portio quemadmodum accipienda sit, videamus. pone duos esse, qui contra tabulas bonorum possessionem accipiunt, unum esse ex liberis parentibusque: virilis tertia erit portio: sed si tres sunt, qui contra tabulas acceperunt, quarta erit virilis: hoc idem et in legatis observabitur. sed si unus sit ex liberis, qui accepit contra tabulas bonorum possessionem, plures sint, qui ex liberis parentibusque legata acceperunt, sic hoc accipiendum est, ut filius praeteritus semissem habeat, ceteri omnes, qui sunt ex liberis parentibusve, semissem.
Let us see how the virile portion is to be taken. Suppose there are two who receive possession of the goods contrary to the will, and that one is of the class of children and parents: the virile portion will be a third. But if there are three who have accepted contrary to the will, the virile portion will be a fourth: this same rule will be observed also in legacies. But if there is one from among the children who has received possession of the goods contrary to the will, and there are more who, being of the children and parents, have received legacies, it is to be taken thus: that the pretermitted son shall have a half, and all the others, who are of the children or the parents, a half.
Si quis ex liberis parentibusque et heres institutus sit et legatum acceperit, utrum tantum portionem ei conservamus an vero et legatum an alterutrum quod elegerit? et magis est, ut utrumque conservetur, sed sic, ne amplius in utroque quam virilem habeat.
If someone from among the children and the parents has been appointed heir and has received a legacy, do we preserve for him only the portion, or indeed both the legacy as well, or whichever one he chooses? And the sounder view is that both be preserved, but thus, that in both he have no more than a virile share.
Si adierit hereditatem is cui virilis conservatur, libertates competent ex necessitate per aditionem: verumtamen videndum est, an de dolo actione teneatur qui adit. et magis est, ut, si denuntiante eo, qui praeteritus accepit contra tabulas bonorum possessionem, hic adiit hereditatem pollicente eo portionem virilem, sit quod ei imputetur et de dolo actione teneatur: damno enim adficit hereditatem, dum competunt libertates.
If he to whom a virile portion is being preserved shall have entered upon the inheritance, the manumissions will of necessity accrue through the adition (acceptance); nevertheless it must be considered whether he who enters is held by the action for dolus (fraud). And it is rather the case that, if, after notice by him who, having been passed over, has obtained bonorum possessio against the will, this man entered upon the inheritance, that man promising the virile portion, it should be imputed to him and he should be held by the action for dolus: for he afflicts the inheritance with loss, while the manumissions accrue.
Esse autem uxorem mortis tempore exigemus. si nurui dotem praelegaverit eaque mortis tempore nupta sit, nullum legatum est, quia dos nondum debeatur: sed cum et constante matrimonio adversus heredes soceri dabitur actio, dicendum est etiam praelegatae dotis petitionem dari debere.
However, we shall require that she be a wife at the time of death. If he has prelegated a dowry to his daughter-in-law and she is married at the time of death, there is no legacy, because the dowry is not yet owed: but since even with the marriage standing an action will be given against the heirs of the father-in-law, it must be said that a petition for the prelegated dowry also ought to be granted.
Non omnia, quae ab omnibus gradibus relicta sunt, legata praestare eum oportet qui contra tabulas petit, sed ea sola, quae in eo gradu data sunt, contra quem bonorum possessionem accepit. sed nonnumquam contra alium quidem gradum petita est bonorum possessio, ex alio vero legata praestanda sunt: ut ecce duos gradus heredum fecit, emancipatum praeteriit, ab utroque tamen gradu liberis et parentibus legata adscripsit. ait iulianus: si quidem aliquis ex primo gradu vivit, ea legata praestabit, quae liberis et parentibus a primo gradu data sunt: sin vero nemo vivit eorum, ea quae a sequenti: quod si neque ex primo gradu neque ex secundo quisquam in rebus fuerit humanis, cum testator moritur, tunc ab intestato magis bonorum possessionem praeterito filio competere nec legata cuiquam praestanda: quod si post mortem testatoris ante aditam hereditatem instituti decesserint, contra ipsos quidem videri petitam, verumtamen ab eis relicta legata non esse praestanda, sed quae a substitutis relicta sunt.
Not all the legacies that were left by all the grades are he who seeks against the tablets obliged to provide, but only those which were given in that grade against which he accepted bonorum possessio. But sometimes bonorum possessio has been sought against one grade, yet legacies must be provided from another: as, for example, he made two grades of heirs, he passed over an emancipated son, yet from each grade he assigned legacies to children and parents. Julian says: if indeed someone from the first grade is alive, he will provide those legacies which were given to the children and parents by the first grade; but if none of them is alive, those from the next. But if neither from the first grade nor from the second anyone was among the living when the testator dies, then bonorum possessio ab intestato rather pertains to the son who was passed over, and legacies are not to be provided to anyone. But if, after the death of the testator and before the inheritance is entered, the instituted heirs have died, it is seen to have been sought against them; nevertheless, the legacies left by them are not to be provided, but those which were left by the substitutes.
Item a substituto legata deberi dicimus, si institutus condicione defectus esset, quae in ipsius potestate non fuit: nam si eam, quae in ipsius potestate fuit, non implevit, pro eo habendus est, qui noluit adire hereditatem, quando nihil habiturus emolumenti condicioni merito non paruerit.
Likewise we say that legacies are owed by the substitute, if the instituted heir has failed a condition which was not within his power: for if he did not fulfill one which was within his power, he is to be held as one who was unwilling to enter upon the inheritance, since, about to have no emolument, he rightly did not comply with the condition.
Nonnumquam contra tabulas bonorum possessionem quis habet iure secundum tabulas bonorum possessionis: ut puta heres institutus est emancipatus filius, alius emancipatus praeteritus, institutus accepit contra tabulas bonorum possessionem, praeteritus omisit: apertissimum est, ut cogatur omnibus perinde legata praestare, atque si commissum edictum non fuisset: nec enim occasio emancipati praeteriti debet institutum lucro adficere, cum praeteritus iure suo non utatur.
Sometimes someone has possession of the goods “against the tablets” by a right “according to the tablets” of possession of the goods: for instance, an instituted heir is an emancipated son, another emancipated son is pretermitted; the instituted obtained possession of the goods contra tabulas, the pretermitted omitted (to claim). It is most evident that he must be compelled to furnish the legacies to everyone just as if the edict had not been incurred; for the occasion of a pretermitted emancipated (son) ought not to confer profit upon the instituted, when the pretermitted does not use his right.
Si ab uno ex filiis herede instituto nominatim alicui ex liberis parentibusque legatum datum sit et acceperit bonorum possessionem contra tabulas cum aliis, melius est probare omnes, qui contra tabulas bonorum possessionem acceperunt, cogendos id legatum praestare.
If by one of the sons instituted as heir a legacy has been given by name to someone from among the children and the parents, and he has accepted possession of the goods against the will together with others, it is better to hold that all who have accepted possession of the goods against the will are to be compelled to render that legacy.
Is qui in potestate est praeteritus legata non debebit praestare, etsi contra tabulas bonorum possessionem petierit, quia et non petita bonorum possessione intestati hereditatem optineret: nec enim exceptio doli mali huic nocet et absurdum est eum cogi legata praestare, quia bonorum possessionem petierit, cum et sine hac hereditatem habiturus sit suo iure. unde si duo praeteriti sunt, emancipatus et is qui in potestate est, quidam nec emancipatum praestare debere legata existimant, quia effectu fratris aufert partem dimidiam, cum et si hic non peteret, suus solus rem habiturus esset. quid ergo est?
He who is under paternal power and has been passed over will not have to furnish the legacies, even if he has sought possession of the goods contrary to the will, because even without petitioning for possession of the goods he would obtain the inheritance of an intestate; for neither does the exception of dolus malus harm him, and it is absurd that he be compelled to furnish the legacies because he has sought possession of the goods, since even without this he is going to have the inheritance by his own right. Whence, if two have been passed over, an emancipated son and one who is under paternal power, some think that not even the emancipated one ought to furnish the legacies, because by the effect of his brother he removes the half share, since even if this man did not seek it, the suus heir alone would have the thing. What, then, is the case?
Sed si unus emancipatus heres scriptus sit, alter praeteritus et utrique contra tabulas bonorum possessionem acceperint, et institutus eadem praestat quae praeteritus. sed si solus heres institutus contra tabulas bonorum possessionem acceperit, omnibus debebit legata praestare, perinde atque si adisset hereditatem. sed si scriptus quidem adierit hereditatem, praeteritus autem bonorum possessionem acceperit: hic quidem, qui bonorum possessionem acceperit, certis personis legata debebit, de scripto autem quaeritur.
But if one emancipated [son] has been written as heir, the other omitted, and both have received bonorum possessio against the will, then the instituted [heir] owes the same things as the omitted. But if the sole instituted heir has received bonorum possessio against the will, he will owe the legacies to everyone, just as if he had entered upon the inheritance. But if the written [heir] has indeed entered upon the inheritance, and the omitted has received bonorum possessio: this one, who has received bonorum possessio, will owe legacies to certain persons; but as to the written [heir], inquiry is made.
Ita autem tuendus est in partem dimidiam, si aut ex maiore parte quam dimidia heres institutus sit aut ex semisse: quod si ex minore parte quam dimidia institutus sit, dicimus non ex maiore parte, quam institutus sit, tuendum eum esse: qua enim ratione maiorem partem habere potest, cum nec bonorum possessionem accepit nec ex maiore parte institutus sit?
He is thus to be protected up to the half-share, if he has been instituted heir either for a greater part than one-half or for a semis (half); but if he has been instituted for a smaller part than one-half, we say that he is not to be protected for a greater part than that for which he was instituted: for by what reasoning can he have a greater part, since he has neither accepted the possession of the goods nor been instituted for a greater part?
Si extraneo herede instituto sub hac condicione exceptae personae legatum sit, si heredi decem dederit, ita ei legatorum actio dabitur, si ei, qui contra tabulas bonorum possessionem accepit, dederit, non si heredi instituto, quia absurdum est illum commoda hereditatis habere, alium onera sustinere in praestando legato. sed et si titio iussus fuerit dare, non illi, sed filio dare debet.
If, an outsider having been instituted as heir, a legacy be left to an excepted person under this condition, “if he shall give ten to the heir,” then an action for legacies will be granted to him, provided he has given to him who has received bonorum possessio contrary to the will, not if he has given to the instituted heir; for it is absurd that one should have the advantages of the inheritance, another bear the burdens in performing the legacy. But even if he has been ordered to give to Titius, he must give not to him, but to the son.
Si duo proponantur esse unus in potestate praeteritus, alius emancipatus institutus, apparet commissum esse edictum per eum, qui in potestate est: et si ambo petissent contra tabulas bonorum possessionem, is quidem, qui in potestate mansit, cum rem ab intestato habeat, non praestabit liberis et parentibus legata. emancipatus vero numquid nec ipse praestat, quia ei rem auferret, qui praestaturus non erat, si solus esset? sed verius est vel hunc saltem debere liberis et parentibus praestare legata.
If two are posited, one under paternal power passed over, the other emancipated and instituted [as heir], it is clear that the edict has been set in motion by the one who is in power; and if both should seek bonorum possessio against the will, the one who remained in power, since he holds the estate as from intestacy, will not render the legacies to children and parents. As for the emancipated one, would he perhaps likewise not render them, because he would be taking the property from one who would not have been going to render them, if he were alone? But it is more correct that at least this one ought to render the legacies to children and parents.
Accordingly, if he did not accept against the will, it must be said that he is to be maintained in his share, and in any case that he will render the legacies to the children and parents. But whether to all, I am in doubt; nevertheless, since he enjoys the will in full, he ought to render full obedience to the testator’s judgment for his own share.
Si emancipato filio praeterito pater extraneum heredem instituisset et ab eo rem legasset eaque adita hereditate dolo scripti heredis perisset, adversus emancipatum utilis actio dari debebit ei scilicet personae, cui filius legata praestare cogitur, quia praetori propositum est sine iniuria ceterarum personarum bonorum possessionem contra tabulas testamenti dari.
If, an emancipated son having been passed over, the father had instituted a stranger as heir and had bequeathed a thing from him, and, the inheritance having been entered upon, it had perished through the fraud of the written heir, a useful action ought to be given against the emancipated son—to that person, namely, to whom the son is compelled to render the legacies—since it is the praetor’s purpose that the possession of the goods (bonorum possessio) contrary to the tablets of the testament be granted without injury to the other persons.
Nepos qui in potestate mansit et filius suus heredes instituti sunt: nepoti legatum dedit: pater eius emancipatus petit bonorum possessionem: nepos legato contentus est. quidam in eum solum, qui in potestate esset, legati actionem nepoti dandam responderunt, quia ei nihil auferatur et emancipatus partem filii sui occupet, in qua onus legatorum non consisteret. sed rectius dicetur in emancipatum solum dandam esse actionem nepoti, et quidem non ultra quadrantem,
The grandson who remained under power and his own son were instituted heirs: he gave a legacy to the grandson: his father, being emancipated, seeks possession of the goods: the grandson is content with the legacy. Some answered that the action for the legacy should be given to the grandson only against him who was under power, because nothing is taken from him, and the emancipated man occupies the share of his son, in which the burden of legacies would not consist. But it will be said more correctly that the action should be given to the grandson against the emancipated alone, and indeed not beyond a quarter,
Si filius emancipatus contra tabulas ^ tabulus^ bonorum possessionem petierit, tuendos quidem liberos et parentes constat. sed si varie donatum fuerit exceptis personis a testatore mortis causa, pro rata conferent ad virilem emancipato, sicut accidit in portionibus hereditariis et legatis.
If an emancipated son shall petition for the possession of goods against the will ^ tabulus^, it is agreed that children and parents are to be protected. But if various donations have been made mortis causa by the testator, with certain persons excepted, they shall contribute pro rata to a virile share for the emancipated son, just as happens in hereditary portions and in legacies.
Intervenit illa quaestio, quando numero liberorum esse debeat is cui legatum datum est, ut id ferre possit a filio contra tabulas bonorum possessionem accipiente. et placet sufficere in ea necessitudine tunc esse, quando dies legati cedit.
That question arises: when ought the person to whom a legacy has been given to be in the number of the children, so that he may be able to take it as against a son accepting bonorum possessio against the tablets (will). And it is held that it suffices for him to be in that necessitude (kinship) at the time when the day of the legacy accrues.
Qui filium emancipaverat et nepotem ex eo retinuerat in potestate, testamento filium exheredavit, nepotem ex aliqua parte instituit heredem et alium filium emancipatum praeteriit. potest defendi nepotem quoque bonorum possessionem contra tabulas petere posse: nam pro ea parte, qua quisque intestato suus heres esset, si pater suus heres non esset, bonorum possessio defertur.
He who had emancipated a son and had retained in his power a grandson from that son, by his will disinherited the son, instituted the grandson heir to some share, and passed over another emancipated son. It can be maintained that the grandson too is able to seek possession of the goods against the tablets; for, to the extent to which each would be a suus heir in case of intestacy, if his own father is not heir, possession of the goods is conferred.
Is, cuius filius in adoptione erat, nepotem, quem filius postea procreaverat, scripsit heredem, emancipatum filium praeteriit: num habet nepos ex edicto bonorum possessionem? tuendus tamen exemplo parentium et liberorum, quibus legata praestare coguntur qui bonorum possessionem contra tabulas acceperunt.
He, whose son was in adoption, wrote as heir the grandson whom the son afterwards had begotten, and he passed over his emancipated son: does the grandson have bonorum possessio from the edict? He ought nevertheless to be protected by the precedent of parents and children, to whom those who have received bonorum possessio contra tabulas are compelled to render legacies.
Hic titulus manifestam habet aequitatem: cum enim praetor ad bonorum possessionem contra tabulas emancipatos admittat participesque faciat cum his, qui sunt in potestate, bonorum paternorum: consequens esse credit, ut sua quoque bona in medium conferant, qui appetant paterna.
This title has manifest equity: for since the praetor admits emancipated persons to the possession of the estate against the tablets, and makes them participants with those who are in potestas in the paternal goods, he thinks it consequent that those who seek the paternal goods should likewise contribute their own goods into the common stock.
Si ex dodrante fuit institutus filius qui erat in potestate, extraneus ex quadrante, emancipatum accipientem contra tabulas pro quadrante tantum bona sua collaturum iulianus ait, quia solum quadrantem fratri abstulit: argumentum pro hac sententia adfert pomponius, quod filius emancipatus nepotibus ex se natis solis conferre cogitur.
If a son who was in the power was instituted from three-quarters, and a stranger from one-quarter, Julian says that an emancipated son receiving against the will will collate his own goods only for one-quarter, because he took away only one-quarter from his brother: Pomponius adduces an argument for this opinion, that an emancipated son is compelled to collate only to grandsons born from himself.
Pater filium quem in potestate habebat et extraneum heredem scripsit, emancipatum praeteriit: bonorum possessionem contra tabulas uterque filius accepit. potest non incommode dici emancipatum ita demum conferre fratri suo debere, si aliquid ei ex causa hereditaria abstulerit: nam si minore ex parte quam dimidia is qui in potestate erat heres scriptus fuerit, inique videbitur collationem postulare ab eo, propter quem amplius hereditate paterna habiturus est.
A father appointed as heirs the son whom he had in his power and an outsider, and passed over the emancipated son; both sons accepted possession of the goods against the will. It can not inaptly be said that the emancipated son ought to collate to his brother only if he has taken something from him by reason of the inheritance; for if the one who was in his power was instituted heir for less than a half share, he will seem inequitable to demand collation from him, thanks to whom he is going to have more from the paternal inheritance.
Ibidem iulianus ait, si bonorum possessione accepta decesserit is qui in potestate est, ad collationem bonorum cogendum emancipatum, ut tantum heredi eius conferat, quantum conferret ipsi, si viveret. quod si ante acceptam bonorum possessionem decesserit suus, heredem eius praetor ita tueri debebit, inquit, pro ea parte, qua heres scriptus fuit is qui in potestate erat, non tamen ultra virilem: ad collationem autem non admittit eum in hunc casum, quia bonorum possessio admissa non est.
There likewise Julian says that, if, after bonorum possessio has been accepted, the one who is in potestas has died, the emancipated person is to be compelled to a collatio of goods, so that he contribute to his heir as much as he would contribute to him, if he were alive. But if a suus (proper heir) has died before bonorum possessio is accepted, the praetor, he says, ought to protect his heir to that extent for which the one who was in potestas had been instituted heir, yet not beyond a virile share; moreover, he does not admit him to collatio in this case, because bonorum possessio has not been admitted.
Iubet autem praetor ita fieri collationem, ut recte caveatur: caveri autem per satisdationem oportere pomponius ait. an pignoribus caveri possit, videamus: et pomponius libro septuagesimo nono ad edictum scripsit et reis et pignoribus recte caveri de collatione, et ita ego quoque puto.
Moreover, the praetor orders that the collation be made in such a way that proper security be taken; and Pomponius says that security ought to be taken through satisdation. Let us see whether security can be taken by pledges: and Pomponius in the seventy-ninth book on the edict wrote that proper security concerning the collation can be taken both by persons bound and by pledges, and so I too think.
Si frater cavere non possit, curator portionis eius constituitur, apud quem refecta pecunia collocetur, ut tunc demum recipiat quod redactum est, cum bona propria contulerit. quod si per contumaciam actiones denegatae sint, oblata postea cautione recipit pristinum ius.
If the brother cannot furnish caution, a curator of his portion is appointed, with whom the money, once made up, is to be deposited, so that only then may he receive what has been realized, when he has contributed his own goods. But if through contumacy the actions have been denied, upon caution being offered thereafter he regains his former right.
Quamvis autem edictum praetoris de cautione loquatur, tamen etiam re posse fieri collationem pomponius libro septuagensimo nono ad edictum scripsit. aut enim re, inquit, aut cautione facienda collatio est. igitur dividat, inquit, bona sua cum fratribus et quamvis non caveat, satisfacit edicto.
Although the praetor’s edict speaks about security, nevertheless Pomponius wrote in the seventy-ninth book on the edict that collation can also be effected in fact. For, says he, collation is to be made either in fact or by security. Therefore, says he, let him divide his goods with his brothers, and although he does not give security, he satisfies the edict.
but also if he divide certain things and as to certain others give a caution, we equally say that he has satisfied it. but since some things can be in concealment, he who has not given a caution does not contribute sufficiently, although he divides. if therefore it be agreed between the parties what is in the goods of the emancipated person, the division is a sufficient collation: if it be not agreed, but some things are said not to have been brought into the common, then on account of the uncertainty a caution must be interposed.
Sed et si tantum forte in bonis paternis emancipatus remittat, quantum ex collatione suus habere debet, dicendum est emancipatum satis contulisse videri: idem et si nomen paterni debitoris delegaverit vel fundum remve aliam dederit pro portione bonorum, quae conferre debuit.
But also, if by chance the emancipated remits into the paternal goods only so much as the suus-heir ought to have from the collation, it must be said that the emancipated appears to have contributed enough; the same [holds] also if he has delegated the claim of the father’s debtor or has given an estate or another thing in proportion to the goods which he ought to confer.
Si, cum duobus conferre deberet, alteri contulerit, alteri non, vel cum cavet vel cum dividit: videndum est, utrum sextantis tantum ei auferatur emolumentum an vero trientis totius detrahi debeat. et puto, si quidem per contumaciam non caveat, totius trientis ei denegandas actiones ( nec enim videtur cavisse, qui non omnibus cavit): quod si per inopiam, sextantis tantum denegandas, sic tamen, ut possit supplere cautionem vel collatione vel ceteris modis quibus supra diximus, aut curator constituatur rem ei salvam facturus: haberi enim debet ratio eius, qui non per contumaciam collationem non implet.
If, when he ought to contribute to two, he has contributed to the one and not to the other, whether when he furnishes security or when he divides: it must be considered whether only the emolument of a sixth should be taken from him, or indeed that of the whole third ought to be deducted. And I think that, if indeed he does not furnish security through contumacy, actions for the whole third are to be denied to him (for he does not seem to have furnished security who has not furnished it to all): but if through poverty, only those for a sixth are to be denied, yet in such a way that he can make up the security either by contribution or by the other methods which we said above, or a curator be appointed to make the thing safe for him: for consideration ought to be had for him who does not fulfill the contribution not through contumacy.
Is quoque, qui in adoptiva familia est, conferre cogitur, hoc est non ipse, sed is qui eum habet, si maluerit contra tabulas bonorum possessionem accipere. plane si hic adoptivus pater ante bonorum possessionem petitam emancipaverit eum, non cogetur ad collationem, et ita rescripto divorum fratrum expressum est: sed ita demum adoptivus emancipatus collatione fratres privabit, si sine fraude hoc factum sit.
He also who is in an adoptive family is compelled to contribute to the collation, that is, not he himself, but the one who has him, if he should prefer to accept bonorum possession against the tablets. Clearly, if this adoptive father emancipates him before the bonorum possession has been sought, he will not be compelled to the collation, and thus it has been expressed by a rescript of the deified brothers; but only then will the adoptive son, once emancipated, deprive his brothers of the collation, if this has been done without fraud.
Sed an id, quod dignitatis nomine a patre datum est vel debetur, conferre quis in commune cogatur, videamus. et ait papinianus libro tertio decimo quaestionum non esse cogendum: hoc enim propter onera dignitatis praecipuum haberi oportere. sed si adhuc debeatur, hoc sic interpretandum est, ut non solus oneretur is qui dignitatem meruit, sed commune sit omnium heredum onus hoc debitum.
But let us see whether one is to be compelled to contribute into the common stock that which, under the title of dignity, was given by the father or is owed. And papinianus, in the thirteenth book of the Questions, says that he is not to be compelled: for this ought to be held as a special item on account of the burdens of the dignity. But if it is still owed, this is to be interpreted thus: that not he alone who has merited the dignity be burdened, but that this debt, as a burden, be common to all the heirs.
Qui ab hostibus captus post mortem patris redit, licet moriente patre nihil habuit, cum apud hostes fuerit, tamen et ad bonorum possessionem admittetur et conferet scilicet ea, quae moriente patre haberet, si ab hostibus captus non fuisset. sed et si redemptus ab hostibus mortis tempore patris inveniatur, aeque collatio erit facienda.
He who, captured by the enemies, returns after the death of his father—although, while his father was dying, he had nothing, since he was among the enemies—nevertheless will be admitted to the possession of the goods, and will confer, namely, those things which he would have had at his father’s death, if he had not been captured by the enemies. But also, if he is found to have been ransomed from the enemies at the time of the father’s death, likewise collation will have to be made.
Si ab ipso patre herede instituto filio eius fideicommissum fuerit relictum, cum morietur, an id conferendum est, quoniam utile est hoc fideicommissum? et eveniet, ut pro eo habeatur, atque si post mortem patris relictum fuisset, nec cogetur hic conferre, quia moriente eo non fuisset.
If by the father himself a fideicommissum has been left to his son, who has been instituted heir, to take effect when he shall die, is it to be brought into collation, since this fideicommissum is effective? And it will come about that it is regarded as though it had been left after the father's death, and he will not be compelled to collate, because at his death it would not have existed.
Si impuberi adrogato secundum divi pii rescriptum quarta debetur, videndum est, an, si patris naturalis bonorum possessionem petat, conferre quartam debeat. quaestio in eo est, an heredi suo relinquat quartae actionem an non. et magis est, ut ad heredem transferat, quia personalis actio est: igitur etiam de quarta conferenda cavere eum oportebit, sed hoc ita demum, si iam nata est quartae petitio.
If to an adrogated impubes, according to the rescript of the deified Pius, a fourth is owed, it must be considered whether, if he seeks bonorum possession of his natural father, he ought to confer the fourth. The question is this: whether he leaves to his own heir the action for the fourth or not. And it is rather the case that he transfers it to the heir, since it is a personal action: therefore he too ought to give security regarding the fourth to be conferred, but this only if the claim for the fourth has already arisen.
Si is qui bona collaturus est habeat filium peculium castrense habentem, non cogetur utique peculium eius conferre. sed si iam tunc mortuus erat filius eius et castrense peculium habebit, cum morietur is cuius bonorum possessio petenda est: an conferre cogatur? cum autem vindicari id patri non sit necesse, dici oportebit conferendum: non enim nunc adquiritur, sed non adimitur.
If he who is about to collate goods has a son possessing a military peculium (peculium castrense), he will certainly not be compelled to collate that peculium. But if already at that time his son had died, and he will have the military peculium when the one whose possession of the estate (bonorum possessio) is to be sought dies—must he be compelled to collate it? Since, however, it is not necessary that it be vindicated to the father, it ought to be said that it must be collated: for it is not now being acquired, but is not being taken away.
Confertur autem etiam si quid eius non fuerit, dolo malo autem factum sit, quo minus esset: sed hoc sic accipiendum est, ut hoc demum conferatur, quod eius esse desiit dolo malo: ceterum si id egit, ne adquireret, non venit in collationem: nam hic et sibi insidiatus est.
Moreover, an item is brought into collation even if it has not been his, provided it was by malicious fraud that it was prevented from being so; but this is to be understood thus, that only that is brought into collation which ceased to be his through malicious fraud: whereas if he contrived that he not acquire it, it does not come into collation; for here he has even plotted against himself.
Portiones collationum ita erunt faciendae: ut puta duo sunt filii in potestate, unus emancipatus habens trecenta: ducenta fratribus confert, sibi centum: facit enim eis partem, quamvis is sit, cui conferri non solet. quod si duo sint filii emancipati habentes trecena et duo in potestate, aeque dicendum est singulos singulis, qui sunt in potestate, centena conferre, centena retinere, sed ipsos invicem nihil conferre. dotis quoque collatio in eundem modum fiet, ut quicumque confert, etiam suam personam numeret in partibus faciendis.
The portions of the collations shall be made thus: suppose there are two sons in paternal power, and one emancipated having 300: he contributes 200 to his brothers, 100 to himself; for he makes for them a share, although he is one to whom it is not customary that a collation be made. But if there are two emancipated sons having 300 apiece and two under paternal power, it is likewise to be said that each contributes 100 to each of those who are in power, and retains 100, but that they contribute nothing to one another. The collation of a dowry also will be made in the same manner, so that whoever contributes also counts his own person in making the shares.
Cum emancipati filii nomine nepotem postumum post avi mortem editum dicimus bonorum possessionem accipere oportere, necessarium erit dicere bona sua eum conferre, licet non potest dici mortis tempore avi bona habuisse, qui ipse nondum in rerum natura erat. igitur sive hereditatem a patre sive legatum acceperit, hoc conferre debebit.
when we say that, in the name of an emancipated son, a posthumous grandson, born after the grandfather’s death, ought to receive bonorum possession, it will be necessary to say that he must confer his own goods, although it cannot be said that at the time of the grandfather’s death he had goods, since he himself was not yet in being. therefore whether he has received an inheritance from his father or a legacy, he must confer this.
Illud autem intellegendum est filium in bonis habere, quod deducto aere alieno superest. sed si sub condicione debeat, non statim id deducere debebit, sed id quoque conferre: contra autem caveri ei oportebit ab eo qui in potestate est, ut existente condicione defendatur pro ea parte quam contulit.
However, this is to be understood: that the son “has among his goods” what remains after the debt has been deducted. But if he owes under a condition, he ought not to deduct it at once, but should also confer that; conversely, security ought to be provided to him by the one who holds the power, so that, when the condition comes to be, he is defended for the portion which he has contributed.
De illis, quae sine culpa filii emancipati post mortem patris perierunt, quaeritur, ad cuius detrimentum ea pertinere debeant. et plerique putant ea, quae sine dolo et culpa perierint, ad collationis onus non pertinere: et hoc ex illis verbis intellegendum est, quibus praetor viri boni arbitratu iubet conferri bona: vir autem bonus non sit arbitraturus conferendum id, quod nec habet nec dolo nec culpa desiit habere.
Concerning those things which, without the fault of the emancipated son, perished after the father’s death, the question is to whose detriment they ought to pertain. And most think that those things which have perished without fraud and fault do not pertain to the burden of collation: and this is to be understood from those words by which the praetor, by the arbitration of a good man, orders the goods to be contributed: moreover, a good man will not judge that there must be contributed what he does not have and did not cease to have through fraud or fault.
Id quoque, quod sub condicione ex stipulatu debetur emancipato, conferri debet. diversum est in legato condicionali, quia et si in potestate fuisset et post mortem patris condicio extitisset, ipse haberet actionem.
That too which, under a condition, is owed from a stipulation to an emancipated son must be brought into collation. It is different in the case of a conditional legacy, because even if he had been under paternal power and the condition had arisen after the father’s death, he himself would have the action.
Si tres emancipati, duo in potestate sint, gaius cassius libro septimo iuris civilis tertias conferendas putat, ut emancipati, quia invicem non conferunt, unius loco sint: nec indignari eos oportere, si plus conferant et minus accipiant, quia in potestate eorum fuerit bonorum possessionem omittere. iulianus quoque cassii sententiam sequitur.
If three are emancipated and two are in power, Gaius Cassius in the seventh book of Civil Law thinks that thirds are to be contributed, so that the emancipated, because they do not contribute among themselves, are in the place of one person; nor ought they be indignant if they contribute more and receive less, because it was within their power to forgo the possession of the goods. Julian likewise follows Cassius’s opinion.
Si ex emancipato filio nepos emancipatus mortuo patre simul et avo bonorum possessionem utriusque acceperit, cum uterque eorum suum heredem reliquerit: eo modo collatio explicari potest, ut, si verbi gratia centum in bonis habuit, et patruo quinquaginta et fratri quinquaginta conferre debet: hoc enim ratio facit, sive personas sive portiones numeremus.
If a grandson, himself emancipated from an emancipated son, upon his father’s death has at the same time accepted the possession of the goods of both his father and his grandfather, since each of them left him as his own heir: collation can be worked out in this way, that, if, for example, he had one hundred among his goods, he ought to contribute fifty to his paternal uncle and fifty to his brother; for reason dictates this, whether we count by persons or by shares.
Si duo nepotes ex filio mortuo emancipati bonorum possessionem avi petant, utrum dimidias an quartas patruo conferre debeant, quaeritur. et verius est semisses conferre eos oportere, quia et si vivo avo, cum in eius potestate essent, ducenta puta adquisissent, centum filius, centum duo fratres per hereditatem avi haberent.
If two grandsons, emancipated, from a deceased son seek the bonorum possession of their grandfather, the question is raised whether they ought to contribute halves or quarters to their paternal uncle. And the truer view is that they ought to contribute halves, because even if the grandfather were alive, while they were in his power, if they had acquired, say, 200, the son would have 100, and the two brothers would have 100 through the inheritance of the grandfather.
Si per inopiam emancipatus cavere non possit, non statim ab eo transferenda est possessio, sed sustinendum, donec possit invenire fideiussores, ut tamen de his, quae mora deteriora futura sunt, his qui in potestate sunt actio detur ipsique caveant in medium collaturos, si cautum eis fuerit.
If, through poverty, the emancipated [son] cannot furnish security, possession is not to be transferred from him at once, but it must be held off until he can find fideiussors (sureties); yet, as to those things which will become worse by delay, an action is to be granted to those who are in potestate, and they themselves must give security that they will contribute into the common stock, if security shall have been given to them.
Praetor non sub condicione collationis bonorum possessionem contra tabulas promittit, sed demonstrat, quid data bonorum possessione fieri oportet. alioquin magna captio erit emancipati, si non aliter bonorum possessionem accipere intellegeretur, nisi cavisset de collatione: nam si interim ipse decessisset, heredi suo nihil relinqueret. item si frater eius decessisset, non admitteretur ad bonorum possessionem.
The praetor does not promise possession of the goods against the tablets under the condition of collation, but shows what ought to be done once possession of the goods has been given. Otherwise there will be great detriment to the emancipated son, if it were understood that he could not otherwise accept possession of the goods unless he had provided security concerning collation: for if in the meantime he himself had died, he would leave nothing to his heir. Likewise, if his brother had died, he would not be admitted to possession of the goods.
Emancipatus filius controversiam facit impuberi, qui se filium et in potestate patris fuisse dicit: quaero, si bona sua ei emancipatus conferre debeat. paulus notat: puto conferendum esse exacta cautione, ut victus sicut hereditatem, ita et quae collata sunt praestet.
An emancipated son brings an action against an impubes, who says that he was a son and under a father’s power: I ask whether, being emancipated, he ought to confer his goods upon him. Paulus notes: I think it must be collated upon exact security, so that, if he is defeated, he will make good, as the inheritance, so also the things that have been collated.
Iulianus. quotiens contra tabulas bonorum possessio datur, emancipati bona sua conferre debent his solis, qui in potestate patris fuerint. hoc quemadmodum expediri oporteat, quaeri solet: nam si bona a patre relicta et emancipatorum in medium conferantur et ita viriles partes sumantur, eveniet, ut et emancipatis quoque collatio ab ipsis facta prosit.
Julian. Whenever possession of the goods is granted contrary to the will, the emancipated must contribute their own goods to those only who were under the father’s power. How this ought to be settled is commonly asked: for if the goods left by the father and those of the emancipated are brought into the common fund and thus the virile shares are taken, it will result that even to the emancipated also the collation made by themselves will be of advantage.
Let us see, then, whether it is most expedient that the emancipated contribute a fourth part out of the paternal goods, and a third out of their own: what I say will become clearer by an example. Let us suppose the father left 400 and two sons in power, two emancipated, of whom one has 100, the other 60 in goods: he who has 100 will contribute 133 and a third, while he who has 60 will contribute 120, and thus it will come about that the emolument of the contribution reaches only those who have remained in the father’s power.
Emancipatus praeteritus si, dum deliberat, caverit de bonorum collatione nec bonorum possessionem petierit, agente fratre ex stipulatu ipso iure tutus erit. sed et si pecuniam contulerit, condictione eam repetit: omissa enim bonorum possessione incipit pecunia sine causa esse apud heredem.
If an emancipated son who has been omitted, while he is deliberating, has given a caution concerning the collation of goods and has not sought possession of the goods, with his brother suing on the stipulation he will be secure ipso iure. But even if he has contributed money, he reclaims it by a condiction: for, the possession of the goods having been omitted, the money begins to be without cause in the hands of the heir.
Qui duos filios in potestate habebat et ex uno eorum nepotem, emancipavit filium, ex quo nepotem habebat: deinde emancipatus factus procreavit filium, quem avus in locum filii adoptavit et vel intestatus, vel testamento facto praeterito emancipato filio, decessit: quaesitum est, quid de bonorum possessione, quid de collatione iuris esset. respondi bonorum, de quibus quaeritur, tres partes fieri debent, ex quibus una pertinet ad filium qui in potestate remansit, altera ad nepotem, qui in locum filii adoptatus est, tertia ad emancipatum filium et nepotem, qui in potestate remanserit, ita ut pater soli ei conferat, cum quo bonorum possessionem accipiat.
He who had two sons in his power and from one of them a grandson, emancipated the son from whom he had the grandson: then, after being emancipated, he procreated a son, whom the grandfather adopted in the place of a son; and, whether intestate, or having made a testament with the emancipated son passed over, he died: the question was asked what should be the case as to bonorum possessio, and what as to collation under the law. I responded that, of the goods in question, three parts ought to be made, of which one pertains to the son who remained in power, another to the grandson who has been adopted into the place of a son, the third to the emancipated son and to the grandson who remained in power, such that the father contributes only to him with whom he receives bonorum possessio.
Si quis filium habeat sui iuris et ex eo nepotem in potestate sua, consequenter erit dicendum, si nepos patris sui emancipati accipiat bonorum possessionem, de conferendis suis quoque bonis cavere eum debere et esse similem ei qui adoptavit: hoc enim divi fratres rescripserunt, ut ad collationem avus compellatur. plane eodem rescripto adiectum est sic: " nisi forte avus iste nullum ex his bonis fructum adquirere vult paratusque est de potestate nepotem dimittere, ut ad emancipatum omne emolumentum bonorum possessionis perveniat. nec idcirco ea filia, quae post emancipationem nata patri heres exstitit, iuste queri poterit", inquit, " quod eo facto a collationis commodo excluditur, cum avo quandoque defuncto ad bona eius simul cum fratre possit venire". haec in patre adoptivo ratio reddi non potest et tamen et ibi idem dicemus, si sine dolo malo emancipaverit.
If someone has a son of his own right and from him a grandson in his own power, it will consequently have to be said that, if the grandson accepts the bonorum possession of his father who has been emancipated, he too must give a caution for bringing in his own goods to collation and be in the same position as one who has adopted: for the deified brothers wrote back this, that the grandfather is to be compelled to collation. Plainly, in the same rescript it was added thus: "unless perhaps this grandfather wishes to acquire none of the fruits from these goods and is prepared to release the grandson from his power, so that all the emolument of the bonorum possession may come to the emancipated one. Nor therefore will that daughter, who after the emancipation was born and became her father's heir, be able justly to complain," he says, "that by that act she is excluded from the benefit of collation, since when the grandfather has at some time died she can come to his goods together with her brother." This reasoning cannot be rendered in the case of an adoptive father; and yet even there we shall say the same, if he has emancipated without fraudulent intent.
Dotem, quam dedit avus paternus, an post mortem avi mortua in matrimonio filia patri reddi oporteat, quaeritur. occurrit aequitas rei, ut, quod pater meus propter me filiae meae nomine dedit, perinde sit atque ipse dederim: quippe officium avi circa neptem ex officio patris erga filium pendet et quia pater filiae, ideo avus propter filium nepti dotem dare debet. quid si filius a patre exheredatus est?
It is asked whether the dowry which the paternal grandfather gave ought, after the grandfather’s death, the daughter having died in marriage, to be returned to the father. The equity of the matter suggests that what my father, on my account, gave in the name of my daughter should be just as if I myself had given it: for indeed the duty of a grandfather toward a granddaughter depends on the duty of a father toward a son, and because he is the father of a daughter, therefore the grandfather, on account of the son, ought to give a dowry to the granddaughter. What if the son has been disinherited by the father?
Nonnumquam praetor variantem non repellit et consilium mutantis non aspernatur. unde quidam filium emancipatum, qui de bonis conferendis cavere fratribus noluit, audiendum postea putaverunt, si vellet oblata cautione beneficium bonorum possessionis exercere. tametsi responderi potest videri eum possessionem repudiasse, qui formam possessionis conservare noluit: sed benignior est diversa sententia, maxime cum de bonis parentis inter fratres disputetur.
Sometimes the praetor does not repel one who varies and does not disdain one who changes his plan. Hence some have thought that an emancipated son, who was unwilling to give security to his brothers regarding the goods to be contributed, should later be heard, if he should wish, upon security being offered, to exercise the beneficium of bonorum possessio. Although it can be replied that he seems to have repudiated possession, who was unwilling to preserve the form of possession; but the opposite opinion is more benign, especially when the goods of a parent are being disputed among brothers.
Filius emancipatus intestati patris bonorum possessionem accepit. nepos ex eodem in familia retentus semissem hereditatis cum emolumento collationis habebit. idem nepos si postea possessionem intestati patris accipiat, fratri post emancipationem patris quaesito et in familia retento bona sua conferre cogetur.
An emancipated son received the possession of the estate of his father who died intestate. A grandson by the same father, retained in the family, will have a half-share of the inheritance with the emolument of collation. The same grandson, if afterward he should receive the possession of the estate of his own father dying intestate, will be compelled to confer his own goods by collation upon the brother begotten after their father’s emancipation and retained in the family.
Si filius in potestate heres institutus adeat et emancipato petente bonorum possessionem contra tabulas ipse non petat, nec conferendum est ei: et ita edictum se habet. scaevola: sed magis sentio, ut, quemadmodum pro parte hereditatem retinet iure eo, quod bonorum possessionem petere posset, ita et conferri ei debeat, utique cum iniuriam per bonorum possessionem patiatur.
If a son in paternal power, instituted as heir, enters upon it, and, when the emancipated one seeks possession of the estate contrary to the will, he himself does not seek it, then no contribution is to be made to him; and thus the edict stands. scaevola: but I am rather of the opinion that, just as he retains the inheritance for his share by that right, namely that he could seek possession of the estate, so also a contribution ought to be made to him, especially since he suffers an injury by means of the possession of the estate.
Paulus respondit ea, quae post mortem patris filio reddi debuerunt, emancipatum filium, quamvis prius consecutus sit quam deberentur, fratri qui in potestate patris relictus est conferre non debere, cum post mortem patris non tam ex donatione, quam ex causa debiti ea possidere videatur.
Paulus answered that the emancipated son ought not to confer upon the brother who was left in the father’s power those things which, after the father’s death, ought to be returned to the son, although he obtained them earlier than they were due, since after the father’s death he is seen to possess them not so much by donation as by cause of debt.
Quamquam ita demum ad collationem dotis praetor cogat filiam, si petat bonorum possessionem, attamen etsi non petat, conferre debebit, si modo se bonis paternis misceat. et hoc divus pius ulpio adriano rescripsit etiam eam, quae non petierit bonorum possessionem, ad collationem dotis per arbitrum familiae herciscundae posse compelli.
Although the praetor only then compels a daughter to the collation of the dowry if she seeks bonorum possession, nevertheless even if she does not seek it, she will have to confer it, provided that she mingle herself with the paternal goods. And the deified Pius wrote in a rescript to Ulpius Adrianus that even she who has not sought bonorum possession can be compelled to the collation of the dowry through an arbiter for partitioning the family estate.
Si in stipulatum deducta sit dos, si quidem ipsa mulier stipulata sit vel ipsi negotium gestum, aeque conferre cogetur: si vero alii quaesita est stipulatio, dicendum est cessare collationem. etsi tantum promissa sit dos, collatio eius fiet.
If the dowry has been brought into stipulation, if indeed the woman herself has stipulated or the business has been transacted for herself, she will likewise be compelled to contribute to the collation: but if the stipulation has been obtained for another, it must be said that the collation ceases. And even if the dowry has only been promised, its collation will be made.
Si sit nepos et neptis ex eodem filio et dotata sit neptis, sit et filius non pater eorum: neptis omnem dotem soli fratri collatura est. emancipata autem neptis dotem et bona sua soli nepoti, non etiam patruo conferet.
If there be a grandson and a granddaughter from the same son, and the granddaughter be dowered, and there also be a son who is not their father: the granddaughter will collate her whole dowry to her brother alone. But if the granddaughter has been emancipated, she will confer her dowry and her own goods upon the grandson alone, not also upon the paternal uncle.
Si filia fuerit heres instituta, collatione dotis non fungetur. unde si commisso ab altero edicto necesse habuerit contra tabulas bonorum possessionem accipere, dicendum est, quoniam nullam iniuriam fratri facit, non debere eam dotem conferre: nam quod habuit ex iudicio, convertitur ad contra tabulas bonorum possessionem. plane si ex minore parte fuit heres instituta et alia quaedam in eam contulit contra tabulas bonorum possessio aucta portione eius, dicendum erit collationis munere eam fungi, nisi forte contenta fuerit portione, ex qua instituta est: tunc enim dicendum est ex iudicio parentis eam venientem non debere munus collationis sustinere.
If a daughter has been instituted heir, she will not discharge the collation of the dowry. Whence, if, the other edict having been set in motion, she has had necessity to accept bonorum possessio against the will, it must be said that, since she does no injury to her brother, she ought not to contribute the dowry: for what she had by adjudication is converted to the bonorum possessio against the will. Plainly, if she was instituted heir for a lesser share, and some other bonorum possessio against the will has brought something to her, her portion being increased, it will have to be said that she performs the duty of collation, unless perhaps she has been content with the portion for which she was instituted: for then it must be said that, coming in by the judgment of her parent, she ought not to bear the burden of collation.
Filius emancipatus, qui possessionem contra tabulas accipere potuit, intestati patris possessionem accepit: atque ita filia, quae mansit in potestate, cum eiusdem familiae fratre heres instituta, possessionem intestati patris errorem fratris emancipati secuta accepit. dotem scripto fratri conferre non cogetur, cum ea possessio frustra petita sit et filia patris voluntatem fini virilis partis retineat, id est ut omnes trientes habeant et bonorum possessio unde liberi fingatur pro contra tabulas esse petita.
The emancipated son, who could have taken possession against the will, accepted the possession of his intestate father; and thus the daughter, who remained in power, having been instituted heir with a brother of the same household, following the error of the emancipated brother, accepted the possession of the intestate father. She will not be compelled to confer the dowry to the brother named in the writing, since that possession was sought in vain and the daughter retains the father’s intention within the limit of the virile portion—that is, that they have all three thirds—and the possession of goods on the footing “whence the children” is deemed to have been sought as if it were “against the will.”
Filia, quae soluto matrimonio dotem conferre debuit, moram collationi fecit: viri boni arbitratu cogetur usuras quoque dotis conferre, cum emancipatus frater etiam fructus conferat et filia partis suae fructus percipiat.
A daughter who, her marriage having been dissolved, ought to have contributed the dowry, caused delay to the collation: by the arbitration of a good man she will be compelled to contribute the interest (usury) of the dowry as well, since an emancipated brother also contributes the fruits, and the daughter receives the fruits of her own share.
Pater filium emancipatum heredem instituit et filiam exheredavit, quae inofficiosi lite perlata partem dimidiam hereditatis abstulit. non esse fratrem bona propria conferre cogendum respondi: nam et libertates competere placuit:
A father instituted his emancipated son as heir and disinherited his daughter, who, after an inofficious suit was brought, carried off half of the inheritance. I replied that the brother is not to be compelled to bring his own property into contribution; for it has been decided that even manumissions stand:
Pater nubenti filiae quasdam res praeter dotem dedit eamque in familia retinuit ac fratribus sub condicione, si dotem et cetera quae nubenti tradidit contulisset, coheredem adscripsit. cum filia se bonis abstinuisset, fratribus res non in dotem datas vindicantibus exceptionem doli placuit obstare, quoniam pater filiam alterutrum habere voluit.
A father gave to his daughter, when she was marrying, certain things besides the dowry, and he kept her within the family, and he enrolled her as coheir with the brothers under the condition that, if she should contribute the dowry and the other things which he had delivered to her upon marriage, she would be coheir. When the daughter had abstained from the estate, and the brothers were vindicating the things not given into dowry, it was decided that the exception of fraud should bar them, since the father wished the daughter to have one or the other.
Fuit quaestionis, an, si sua heres filia patri cum fratribus contenta dote abstineat se bonis, compellatur eam conferre. et divus marcus rescripsit non compelli abstinentem se ab hereditate patris. ergo non tantum data apud maritum remanebit, sed et promissa exigetur etiam a fratribus et est aeris alieni loco: abscessit enim a bonis patris.
It was a matter of question whether, if a daughter, a sui heir to her father, being content with a dowry, should abstain herself from the goods in favor of her brothers, she is compelled to confer. And the deified Marcus rescripted that one abstaining from her father’s inheritance is not compelled. Therefore not only will what has been given remain with the husband, but even what was promised will be exacted even from the brothers, and it is in the place of a debt; for she has withdrawn from her father’s goods.
Si quis ex his, quibus bonorum possessionem praetor pollicetur, in potestate parentis, cum is moritur, non fuerit, ei liberisque quos in eiusdem familia habuit, si ad eos hereditas suo nomine pertinebit neque notam exheredationis meruerunt, bonorum possessio eius partis datur, quae ad eum pertineret, si in potestate permansisset, ita ut ex ea parte dimidiam, reliquam liberi eius hisque dumtaxat bona sua conferat.
If anyone among those to whom the praetor promises possession of the estate was not in the power of a parent when that parent dies, then to him and to the children whom he had in the same household, if the inheritance will pertain to them in their own right and they have not earned the mark of disinheritance, possession of the estate is given of that share which would pertain to him if he had remained under power—on condition that out of that share he contribute one half, and his children the remainder; and that he contribute his own goods to these only.
Et in adoptionem datus filius et heres institutus ad hoc edictum pertinet, ut ei iungatur nepos, qui in avi sui naturalis potestate est. iungitur autem nepos patri suo emancipato, sive pater praeteritus sit sive institutus. et haec erit differentia inter in adoptionem datum et emancipatum, quod in adoptionem quidem dato non alias iungitur nisi instituto et alio committente edictum, emancipato autem, sive sit institutus emancipatus sive sit praeteritus.
And a son given into adoption and instituted as heir pertains to this edict, to the end that a grandson, who is in the power of his natural grandfather, be joined to him. Moreover, a grandson is joined to his own father who has been emancipated, whether the father has been passed over or instituted. And this will be the difference between one given into adoption and one emancipated: in the case of one given into adoption, he is not otherwise joined unless the father has been instituted and another is committing the edict; whereas in the case of one emancipated, whether he be an instituted emancipated man or be passed over.
Si pater emancipatus exheredatus sit nepotibus ex eo praeteritis qui erant in potestate retenti, nepotes admittuntur: absurdum enim est, cum patri praeterito iungantur, instituto eo vel exheredato non admitti.
If the father, being emancipated, has been disinherited, while the grandsons by him—who had been retained in his power—have been passed over, the grandsons are admitted; for it is absurd that, since they are joined with their father when he is passed over, they should not be admitted when he is instituted or disinherited.
Si pater in potestate manens exheredatus vel institutus sit, nepotem ex eo sive in potestate manentem sive emancipatum ad bona avi neque vocari neque vocandum esse scaevola ait: totiens enim nepoti consulendum est, quotiens in potestate retentus est patre emancipato. liberos igitur in familia esse oportet, ut huic edicto locus sit, eius scilicet familia, cuius bonorum possessio petitur. sed et si postumus natus sit ex emancipato ante emancipationem conceptus, idem erit dicendum.
If a father, remaining in power, has been disinherited or instituted as heir, Scaevola says that the grandson from him, whether remaining in power or emancipated, is neither called nor to be called to the goods of the grandfather: for the grandson is to be considered only in those cases in which, the father having been emancipated, he himself has been retained in power. Therefore the children must be in the family, in order that this edict may have scope, namely in the family of him whose possession of goods is sought. But also if a posthumous child is born from one emancipated, conceived before emancipation, the same must be said.
Liberos autem non omnes simul vocat praetor, sed gradatim, hoc est eos, qui sui sunt, scilicet nepotes, si sunt, si minus, eos qui sunt inferioris gradus: nec eos miscebimus. plane si sint ex emancipato nepos et ex nepote eius alio pronepos, dicendum erit utrumque ei iungi: ambo enim in suorum loco successerunt.
But the praetor does not call all the children at once, but step by step, that is, those who are sui, namely the grandchildren, if there are any; if not, those who are of a lower degree: nor will we mingle them. Clearly, if there is a grandson from an emancipated son and, from that grandson, another great‑grandson, it must be said that both are to be joined to him: for both have succeeded into the place of sui‑heirs.
Si pater ex duobus filiis, quos in potestate habuit, alterum emancipaverit et nepotem ex eo in locum filii adoptaverit et praeterito emancipato decesserit: iulianus ait nepoti in locum filii adoptato succurri oportere, ut quasi filius portionem habeat, quam haberet et si extraneus adoptatus esset. sic fiet, inquit, ut filius, qui in potestate fuit, tertiam partem, nepos in locum filii adoptatus aliam tertiam emancipatus filius cum nepote altero retento in potestate partiatur: nec enim minus debet ferre nepos in locum filii adoptatus, quam si ab extraneo esset adoptatus.
If a father, from two sons whom he had in his power, has emancipated one and has adopted the grandson from him in the place of a son, and has died with the emancipated [son] passed over: Julian says that relief ought to be afforded to the grandson adopted in the place of a son, so that, as if a son, he may have the portion which he would have even if he had been adopted as an outsider. Thus it will come about, he says, that the son who was in power [will have] a third part, the grandson adopted in the place of a son another third, and the emancipated son together with the other grandson kept in power will divide the remaining third: for the grandson adopted in the place of a son ought not to take less than if he had been adopted by an outsider.
Inter ipsum filium et liberos eius dividitur hereditas ita, ut ipse dimidium, liberi dimidium habeant. proinde pone solum esse filium emancipatum, esse et nepotes in potestate duos, neminem praeterea ex liberis: habebit emancipatus dimidiam partem hereditatis et aliam dimidiam duo nepotes, ut quadrantes ferant. sed si sit praeterea alius filius, eveniet, ut filius habeat dimidiam partem hereditatis, ex quo nepotes non sunt, alius filius semissem cum filiis suis ita, ut quadrantem hereditatis ipse ferat, quadrans inter liberos eius dividatur.
The inheritance is divided between the son himself and his children in such a way that he has one half, the children one half. Accordingly, suppose there is only an emancipated son, and there are also two grandsons in power, and no one else among the descendants: the emancipated son will have one half of the inheritance, and the other half the two grandsons, so that they take quarters. But if there is besides another son, it will come about that the son, from whom there are no grandsons, has one half of the inheritance, while the other son has a half-share together with his sons, thus: that he himself takes a quarter of the inheritance, and a quarter is divided among his children.
but if both sons are emancipated and each has grandsons, it will come about that each divides a single half-share with his grandsons, in such a way that they themselves take quarters, but the grandsons the remaining quarters: and if one has two sons, the other three, one quarter is divided between the two, the other among the three.
Si quis ex nepotibus portionem suam omiserit, eveniet, ut non ad patrem eius, sed magis ad fratrem pertineat. sed et si omnes nepotes omittant, patruo nihil adcrescet, sed soli patri: quod et si pater omiserit, tunc patruo adcrescet.
If any one of the grandchildren should omit his portion, it will come about that it pertains not to his father, but rather to his brother. But even if all the grandchildren omit, nothing will accrue to the paternal uncle, but to the father alone; and if the father too should omit, then it will accrue to the paternal uncle.
Emancipatus filius si quidem nepotes in avi potestate non habeat, fratribus suis conferet: sed si sint nepotes, voluit eum praetor filiis suis qui sunt in potestate solis conferre, merito, quia veniendo ad bonorum possessionem illis solis iniuriam facit.
An emancipated son, if indeed he has no grandsons in the grandfather’s power, will confer upon his brothers; but if there are grandsons, the praetor wished him to confer only upon his own sons who are in his power, with good reason, because by coming to the possession of the estate he does injury to those alone.
Nunc videamus, quantum eis conferat. et quidem semper, cum fratribus emancipatus confert, virilem sibi detrahit: utrum et in eo casu virilem detrahat, an vero, quia dimidiam partem habeat bonorum possessionis, dimidiam partem etiam bonorum suorum conferat? et puto dimidiam tantum bonorum eis partem conferre: nam et si alius emancipatus sit filius, alius in potestate retentus, filius emancipatus his duobus nepotibus unam partem tantum conferet et patruo eorum qui in potestate mansit unam partem dabit, tertiam ipse habebit: nec quod nepotibus confertur a patruo emancipato, ipsi patri conferent: hoc enim non de bonis avi, sed propter bona postea eis accessit.
Now let us see how much he should confer upon them. And indeed, always, when an emancipated son confers with his brothers, he subtracts for himself a virile share: whether in that case too he subtracts a virile share, or rather, because he has a half share of the bonorum possessio, he should also confer a half share of his own goods? And I think he confers only a half part of his goods upon them: for even if one son has been emancipated, another retained in power, the emancipated son will confer only one share upon these two grandsons and will give one share to their paternal uncle who remained in power; he himself will have a third. Nor will the grandsons confer upon their father that which is conferred upon them by their emancipated paternal uncle: for this has come to them not from the goods of their grandfather, but by reason of goods that afterwards accrued to them.
Eveniet igitur, ut pater emancipatus si centum in bonis habeat, quinquaginta sibi detrahat, residua quinquaginta omnibus nepotibus, id est filiis suis conferat, aut si unum nepotem habeat et duos ex alio pronepotes, ita dividat quinquaginta, ut nepos habeat viginti quinque, pronepotes ex alio una viginti quinque: nam et bonorum possessionis ambo unam partem habent.
It will therefore come about that, if an emancipated father has one hundred in assets, he deducts fifty for himself, and he contributes the remaining fifty to all the grandchildren, that is, to his sons’ children; or, if he has one grandson and two great‑grandchildren from another [son], he divides the fifty so that the grandson has twenty‑five, and the great‑grandchildren from the other together twenty‑five: for in the possession of goods both have one share.
Si sit filius in potestate, alius emancipatus, ex defuncto unus nepos in potestate, alius nepos emancipatus, eleganter scaevola tractat, patruus emancipatus quantum nepotibus, quantum fratri suo conferat. et ait posse dici tres eum partes facere, unam sibi, unam fratri, unam istis collaturum: quamvis hi minus quam patruus ex hereditate avi concurrente patre sint habituri: quae sententia vera est.
If there is a son under potestas, another emancipated; from the deceased, one grandson under potestas, another grandson emancipated, Scaevola elegantly discusses how much an emancipated paternal uncle should contribute to the nephews and how much to his own brother. And he says it can be said that he should make three shares, one for himself, one for his brother, one to be contributed to those: although these will have less than the paternal uncle from the inheritance of the grandfather, with their father concurrently taking part: which opinion is true.
Sed et si sint duo nepotes ex eodem filio hique emancipati sunt et ex altero eorum pronepos in potestate defuncti: partem habebit nepos unus, aliam nepos cum filio suo. sed et si nepos et ex alio nepote defuncto duo pronepotes: unus ex pronepotibus emancipatus soli fratri suo conferat vel, si frater non est, soli patruo, non etiam patruo maiori.
But also if there are two grandsons from the same son and these have been emancipated, and from one of them a great‑grandson is in the power of the deceased: one grandson will have a share, the other a share together with his son. But also if there is a grandson and, from another grandson who has died, two great‑grandsons: one of the great‑grandsons, being emancipated, shall contribute only to his brother, or, if there is no brother, only to his paternal uncle, not also to his great‑uncle.
Nihil in hac parte edicti cavit praetor, ut legata exceptis personis nepos praestet: sed potest superior sermo et ad hunc casum referri. nam absurdum est patrem quidem eius legata praestare, ipsum vero plus habere, cum eadem condicione in eandem partem vocantur.
In this part of the edict the praetor made no provision that, the excepted persons excepted, the grandson should discharge the legacies; but the preceding wording can also be referred to this case. For it is absurd that his father should indeed discharge the legacies, while he himself has more, since they are called to the same share under the same condition.
Qui duos filios habebat, alterum ex his emancipavit, nepotem ex eo in potestate retinuit: emancipatus filium sustulit et a patre exheredatus est: quaero, cum frater eius et ipse emancipatus praeteritus sit et nepotes ex emancipato filio ab avo heredes instituti, quid de bonorum possessione iuris sit? et quid intersit, si emancipatum quoque, ex quo nepotes erant nati, praeteritum esse ponamus. respondi, si filium retento ex eo nepote emancipaverit et emancipatus procreaverit filium et heres uterque nepos institutus fuerit, pater eorum exheredatus, alius filius praeteritus: solus filius praeteritus bonorum possessionem contra tabulas petere poterit: exheredatus enim obstat filiis suis post emancipationem susceptis.
He who had two sons emancipated one of them, but kept the grandson from him in his power; the emancipated son acknowledged a son and was disinherited by his father. I ask, since his brother also, he too emancipated, was omitted, and the grandsons from the emancipated son were instituted heirs by the grandfather, what the law is as to bonorum possession? And what difference is there if we suppose that the emancipated one too, from whom the grandsons had been born, was omitted? I answered: if he emancipated his son while retaining in his power the grandson from him, and the emancipated procreated a son, and each grandson was instituted heir, their father disinherited, the other son omitted, only the omitted son will be able to seek bonorum possession against the will (contra tabulas); for the disinherited man stands in the way of his own sons who were acknowledged after emancipation.
Nevertheless, with the grandson retained under power (in potestate), bonorum possessio ought to be granted, since, if his father, having been emancipated, had been passed over, he could receive bonorum possessio together with him by reason of that head (caput) of the edict which was introduced by Julian, that is, from the new clause; nor ought he to be in a worse condition because his father has been disinherited. And this must be afforded to him even if he too has been passed over. But the condition of his brother, who was born after the emancipation, is different: yet the inheritance also must be preserved to him to the virile share, just as the Emperor Antoninus issued a rescript in the persona of a grandson through a daughter.
Emancipato quis filio retinuit ex eo nepotes in potestate: filius emancipatus susceptis postea liberis decessit. placuit in avi potestate manentes simul cum his, qui post emancipationem nati sunt, decreto bonorum possessionem accipere, manente eo, ut, si velit avus sibi per nepotes adquiri, bona sua conferat aut nepotes emancipet, ut sibi emolumentum paternae hereditatis adquirant: idque ita divus marcus rescripsit.
A person emancipated his son but retained from him grandsons in his power: the emancipated son, after begetting children, died. It was decided that those remaining in the grandfather’s power, together with those who were born after the emancipation, should receive possession of the goods by decree, with this remaining, that, if the grandfather wishes to have it acquired for himself through the grandchildren, he should bring his own goods into contribution or emancipate the grandchildren, so that they may acquire for themselves the emolument of the paternal inheritance; and the deified Marcus so rescripted.
Si nepos exheredatus heres extiterit ei, quem avus heredem fecerat, deinde pater eius emancipatus testamento praeteritus accipiat contra tabulas patris bonorum possessionem, iungi patri suo nepos non poterit, sed ut extraneus excludetur, quia non suo nomine avo heres extiterit.
If a disinherited grandson has become heir to the one whom the grandfather had made heir, and then his father, being emancipated and passed over in the testament, obtains bonorum possessio against the tablets (i.e., the will) of his father, the grandson cannot be joined to his father, but will be excluded as a stranger, because he did not become heir to his grandfather in his own name.
Si post emancipationem filii susceptus ex eo fuerit nepos, conservanda illi erit portio, sed quanta videamus. finge enim patruo scripto heredi coheredem datum hunc nepotem, patrem autem eiusdem praeteritum accepisse contra tabulas bonorum possessionem. quod ad edictum praetoris attinet, semisses bonorum fient: nunc vero post constitutionem divi pii si conservatur pars nepoti, utrum virilis an quarta debeat servari?
If, after the emancipation of a son, a grandson should be begotten from him, a portion will have to be preserved for that one; but how large, let us see. For suppose that to the paternal uncle, instituted as heir by written will, this grandson was given as coheir, but the father of the same, having been passed over, obtained bonorum possessio contra tabulas. As regards the edict of the praetor, half-shares of the estate will result; but now, after the constitution of the deified Pius, if a part is preserved for the grandson, should a virile portion or a fourth be kept?
for if he had been born under the power of the grandfather, he would have been joined into one share with his father. And let us suppose there is another grandson from the same father in the grandfather’s familia: the two would have been going to have one quarter, with their father receiving bonorum possessio against the tablets, if they had been under the grandfather’s power. Is he then now to be protected to a sescuncia (one-eighth), who has not been retained in the familia? And from whom will the portion depart which is to cede to this one—from his father only, or also from the paternal uncle?
Sicuti liberorum eorum, qui iam in rebus humanis sunt, curam praetor habuit, ita etiam eos, qui nondum nati sint, propter spem nascendi non neglexit. nam et hac parte edicti eos tuitus est, dum ventrem mittit in possessionem vice contra tabulas bonorum possessionis.
Just as the praetor had the care of children who are already in human affairs, so also he did not neglect those who are not yet born, on account of the hope of being born. For even in this part of the edict he has protected them, in that he sends the womb into possession, in lieu of a bonorum possessio contrary to the will.
Totiens autem mittitur in possessionem venter, si non est exheredatus et id quod in utero erit inter suos heredes futurum erit. sed et si incertum sit, aliquo tamen casu possit existere, quo qui editur suus futurus sit, ventrem mittemus: aequius enim est vel frustra nonnumquam impendia fieri quam denegari aliquando alimenta ei, qui dominus bonorum aliquo casu futurus est.
So often, moreover, is the womb sent into possession, if the (posthumous child) is not disinherited and that which will be in the womb will be among his suus-heirs. But even if it is uncertain, yet if in some case it could occur that the one who is born would be a suus-heir, we will send the womb into possession: for it is more equitable that expenditures sometimes be made in vain than that maintenance be at some time denied to one who in some event will be the master of the goods.
Quare et si ita exheredatio facta sit: " si mihi filius unus nascetur, exheres esto", quia filia nasci potest vel plures filii vel filius et filia, venter in possessionem mittetur: satius est enim sub incerto eius qui edetur ali etiam eum qui exheredatus sit, quam eum qui non sit exheredatus fame necari: ratumque esse debet, quod deminutum est, quamvis is nascatur, qui repellitur.
Wherefore, even if disinheritance has been made thus: "if one son shall be born to me, let him be disinherited," since a daughter can be born, or more sons, or a son and a daughter, the womb will be placed into possession: for it is better, under the uncertainty concerning him who will be brought forth, to nourish even him who has been disinherited, than that he who has not been disinherited be killed by hunger: and what has been diminished ought to be ratified, although he who is repelled be born.
Per contrarium autem si ab institutis praeteritus sit venter, a substitutis exheredatus, vivis institutis mittendus est in possessionem: quod si non vivant, negat mittendum, quia ad eum gradum devoluta hereditas est, a quo exheredatus est.
Conversely, however, if the venter (the unborn) has been passed over by the instituted heirs and disinherited by the substitutes, while the instituted are alive he must be sent into possession; but if they do not live, he denies that he is to be sent, because the inheritance has devolved to that grade from which he has been disinherited.
Sed et si quis ventrem exheredasset: " qui mihi intra menses tres mortis meae natus erit, exheres esto" vel " qui post tres menses", venter in possessionem utique mittetur, quia aliquo casu suus heres futurus est: et sane benigniorem esse praetorem in hanc partem oportebit, ne qui speratur ante vitam necetur.
But also, if someone disinherited the womb: " who shall be born to me within three months of my death, let him be disinherited" or " who after three months", the womb will in any case be put into possession, because in some event he will be his own heir; and indeed it will be proper for the praetor to be more benign in this regard, lest the one who is hoped for be killed before life.
Etiam ex emancipato venter ad possessionem admittitur. unde apud iulianum libro vicensimo septimo digestorum quaeritur, si emancipatus quis sit uxore iam praegnate, deinde decessisset et pater eius mortuus sit, an venter in possessionem emancipati patris mitti possit. et rectissime scripsit rationem non esse, cur venter, quem edictum admittit, repelli debeat: est enim aequissimum partui consuli, qui natus bonorum possessionem accepturus est.
Even from an emancipated son the womb is admitted to possession. Whence, in julian’s twenty-seventh book of the Digest, the question is raised: if someone has been emancipated with his wife already pregnant, then he has died and his father has died as well, can the womb be sent into possession of the emancipated man’s father? And he wrote most correctly that there is no reason why the womb, which the edict admits, ought to be repelled: for it is most equitable to provide for the offspring, who, once born, will receive possession of the goods.
Si filius in adoptionem datus decesserit praegnate uxore, tunc deinde adoptator defunctus fuerit, mittetur venter in possessionem avi adoptivi. sed an etiam in eius, qui in adoptionem dederat filium, mittetur, videamus: et si hic nepos postumus heres ab avo naturali institutus sit, mittetur in possessionem, quia et nato ei, si nemo ex liberis sit alius bonorum possessio secundum tabulas dari potest, aut, si sint liberi praeteriti, etiam contra tabulas cum ipsis potest accipere.
If a son given into adoption has died with his wife pregnant, then, thereafter, the adopter having died as well, the womb will be put in possession for the adoptive grandfather. But let us see whether it will also be put in possession for the one who had given his son into adoption; and if this posthumous grandson has been instituted heir by his natural grandfather, he will be put in possession, because even to him, when born, if there is no other child, bonorum possessio according to the tablets (i.e., the will) can be given, or, if there are children passed over, he can even receive it against the tablets along with them.
Si ea, quae in possessionem vult ire, uxor negetur vel nurus vel esse vel fuisse vel ex eo praegnas non esse contendatur: decretum interponit praetor ad exemplum carboniani edicti. et ita divus hadrianus claudio proculo praetori rescripsit, ut summatim de re cognosceret et, si manifesta calumnia videbitur eius, quae ventris nomine in possessione mitti desiderat, nihil novi decerneret: si dubitari de re poterit, operam daret, ne praeiudicium fiat ei, quod in utero est, sed ventrem in possessionem mitti oportet. apparet itaque, nisi manifesta sit calumniatrix mulier, debere eam decretum eligere: et ubi omnino iuste dubitari poterit, an ex eo praegnas sit, decreto tuenda est, ne praeiudicium partui fiat.
If she who wishes to go into possession is denied to be the wife or the daughter‑in‑law, either to be or to have been, or it is contended that she is not pregnant by him: the praetor interposes a decree after the example of the Carbonian edict. And thus the deified Hadrian wrote back to Claudius Proculus, praetor, that he should take cognizance of the matter summarily, and, if the manifest calumny of her who desires to be sent into possession in the name of the womb appears, he should decree nothing new; if the matter can be in doubt, he should take care that no prejudice be done to that which is in the womb, but the womb ought to be sent into possession. It appears therefore that, unless the woman be a manifest calumniatrix, she ought to elect a decree; and wherever it can altogether be justly doubted whether she is pregnant by him, she is to be protected by a decree, lest prejudice be done to the offspring.
Et generaliter ex quibus causis carbonianam bonorum possessionem puero praetor dare solitus est, ex hisdem causis ventri quoque subvenire praetorem debere non dubitamus, eo facilius, quod favorabilior est causa partus quam pueri: partui enim in hoc favetur, ut in lucem producatur, puero, ut in familiam inducatur: partus enim iste alendus est, qui et si non tantum parenti, cuius esse dicitur, verum etiam rei publicae nascitur.
And generally, for the same causes for which the praetor was accustomed to give Carbonian bonorum possessio to a boy, we do not doubt that for these same causes the praetor ought also to come to the aid of the womb, all the more easily, because the case of the offspring is more favorable than that of the boy: for favor is shown to the offspring in this, that it be brought forth into the light, to the boy, that he be inducted into the family: for this offspring must be nourished, who is born not only for the parent to whom he is said to belong, but also for the commonwealth.
Quotiens autem venter in possessionem mittitur, solet mulier curatorem ventri petere, solet et bonis. sed si quidem tantum ventri curator datus sit, creditoribus permittendum in custodia bonorum esse: si vero non tantum ventri, sed etiam bonis curator datus est, possunt esse securi creditores, cum periculum ad curatorem pertineat. idcirco curatorem bonis ex inquisitione dandum, idoneum scilicet, oportet creditores curare vel si quis alius est, qui non edito partu successionem speret.
Whenever, however, the womb (the unborn child) is put into possession, the woman is wont to request a curator for the venter, and is wont also (to request one) for the goods. But if a curator has been given only for the venter, the creditors should be permitted to have custody of the goods; if, however, a curator has been appointed not only for the venter but also for the goods, the creditors can be secure, since the risk pertains to the curator. Therefore the creditors ought to take care that a curator for the goods be given after an inquisition, one, namely, who is suitable—or, if there is someone else who hopes for the succession if no birth is brought forth, (he ought to do so).
Mulier autem in possessionem missa ea sola, sine quibus fetus sustineri et ad partum usque produci non possit, sumere ex bonis debet: et in hanc rem curator constituendus est, qui cibum potum vestitum tectum mulieri praestet pro facultatibus defuncti et pro dignitate eius atque mulieris.
But the woman who has been put into possession ought to take from the goods only those things without which the fetus cannot be sustained and brought through to delivery; and for this matter a curator is to be appointed, who shall furnish the woman with food, drink, clothing, and shelter in proportion to the means of the deceased and to the dignity of him and of the woman.
Eligitur autem curator aut ex his, qui tutores dati sunt postumo, aut ex necessariis adfinibusque aut ex substitutis aut ex amicis defuncti aut ex creditoribus, sed utique is, qui idoneus videbitur: aut si de personis eorum quaestio moveatur, vir bonus eligitur.
Moreover, the curator is chosen either from those who were appointed as tutors to the posthumous child, or from necessary relatives and affines, or from substitutes, or from the friends of the deceased, or from the creditors—yet in any case the one who shall appear suitable; or, if a question is raised about the persons of those, a good man is chosen.
Quod si nondum sit curator constitutus ( quia plerumque aut non petitur aut tardius petitur aut serius datur), servius aiebat res hereditarias heredem institutum vel substitutum obsignare non debere, sed tantum pernumerare et mulieri adsignare.
But if a curator has not yet been appointed ( since very often either it is not applied for, or it is applied for somewhat later, or it is granted later), Servius said that the instituted heir or the substitute ought not to seal the estate assets, but only to count them out and assign them to the woman.
Idem ait ad custodienda ea, quae sine custodia salva esse non possunt, custodem ab herede ponendum ( ut puta pecoris, et si nondum messis vindemiave facta sit): et si fuerit controversia, quantum deminui oporteat, arbitrum dandum.
The same says that, for the guarding of those things which cannot be safe without custody, a custodian must be appointed by the heir (for instance, for the herd, and if the harvest or the vintage has not yet been done); and if there is a controversy as to how much ought to be diminished, an arbiter must be given.
Interdum non passim, sed cum causae cognitione mitti venter in possessionem debet, si qui sit, qui controversiam referat. sed hoc tantum ad eum ventrem erit referendum, qui cum liberis admittitur. ceterum si mittatur unde legitimi vel qua alia ex parte, dicendum est non esse causae cognitionem necessariam: nec enim aequum est in tempus pubertatis ventrem vesci de alieno in tempus pubertatis dilata controversia.
At times the womb ought not to be sent into possession indiscriminately, but with an examination of the cause, if there is someone to bring a controversy. But this is to be referred only to that womb which is admitted together with the children. Moreover, if it is sent under the head “whence the statutory heirs” or from any other section, it must be said that an examination of the cause is not necessary: for it is not equitable that the womb should feed at another’s expense until the time of puberty, with the controversy postponed until the time of puberty.
Postumus natus quocumque tempore, qui tamen testatoris morte conceptus iam erit, potest agnoscere bonorum possessionem: nam et ventrem praetor ex omnibus partibus edicti mittit in possessionem bonorum, non missurus scilicet, si ei nato daturus non esset bonorum possessionem.
A posthumous child, born at whatever time, who nevertheless will already have been conceived at the testator’s death, can recognize the possession of the goods: for the praetor even sends the womb into possession of the goods in all parts of the edict, clearly not going to send it if he were not going to grant to him, once born, the possession of the goods.
Si quis non ab aliquo hanc controversiam patiatur, quod inter liberos non sit, sed ab ipso patre, ut puta nepos, qui se retentum in potestate avi dicit, ab emancipato patre, cui iungi desiderat, an differri debeat? et magis est, ut differatur: parvi enim refert, quis ei controversiam faciat, cum et si testator eum negaverit ex liberis, non tamen exheredem scripserit, carboniano possit esse locus.
If someone does not suffer this dispute from some other person—that he is not among the children—but from his very father, for instance a grandson who says he was retained in the power of his grandfather, by his emancipated father, to whom he desires to be joined, should it be deferred? And the sounder view is that it be deferred: for it matters little by whom the controversy is raised against him, since even if the testator has denied that he is among the children, yet has not written him as disinherited, there may be room for the Carbonian possession.
Sed et si quis non tantum ex liberis negetur esse, verum servus etiam esse dicatur forte ex ancilla editus, iulianus scripsit adhuc carboniano locum esse: quod et divus pius rescripsit: nam vel magis consulendum est his quibus maius periculum intenditur. nam si aliter observetur, inventa erit ratio, quemadmodum audacissimus quisque maiore iniuria impuberem adficiat, quod et plura et graviora de eo mentiatur.
But even if someone is denied not only to be of the free, but is even said to be a slave, perhaps born from a maidservant, Julian wrote that there is still room for the Carbonian remedy; and the deified Pius issued a rescript to the same effect: for it is all the more necessary to look out for those against whom the greater peril is aimed. For if it be observed otherwise, a method will have been found by which anyone most audacious would afflict a minor with greater injury, because he would fabricate both more numerous and graver things about him.
Pomponius libro septuagensimo nono ad edictum scripsit, cum filius heres vel exheres scriptus est, carbonianum edictum cessare, quamvis filius esse negetur, quia vel quasi scriptus habet bonorum possessionem, etiamsi filius non est, vel repellitur quasi exheredatus, etsi filius esse videatur: nisi forte postumus, inquit, est heres institutus et natus negetur esse filius, sed subiectus esse dicetur, quo casu eius partis tantum danda est ei bonorum possessio, ex qua institutus est.
Pomponius, in the seventy-ninth book on the edict, wrote that, when a son is written either as heir or as disinherited, the Carbonian Edict ceases to apply, although it is denied that he is a son, because either, as if written, he has bonorum possessio, even if he is not a son, or he is repelled as if disinherited, even if he seems to be a son: unless perhaps, he says, a posthumous child has been instituted heir and, when born, it is denied that he is a son, but he will be said to be subject to him; in which case bonorum possessio is to be given to him only of that share from which he was instituted.
Idem ait, cum quidam exheredem scripsisset filium, quod diceret eum ex adulterio conceptum, quia fieret ei haec controversia, an inter liberos sit, ex hac parte edicti ei bonorum possessionem competere, cum, si sine elogio exheres scriptus esset, non haberet bonorum possessionem. idemque et si ita sit scriptum: " quisquis est, qui filium meum se esse dicit, exheres esto", quia non est filius exheredatus.
He likewise says that, when someone had written his son as disinherited, on the ground that he said he had been conceived from adultery, since this controversy arose for him—whether he is among the children—from this part of the edict possession of the goods belongs to him; whereas, if he had been written disinherited without an elogium, he would not have possession of the goods. and the same holds also if it is written thus: " whoever there is who says that he is my son, let him be disinherited," because the son is not disinherited.
Si quis filium suum heredem instituerit ex minima parte sic " ille qui ex illa natus est heres esto", non quasi filium suum, deinde hic contendat patrem intestatum decessisse seque ei suum heredem esse, interest, coheredes eius utrum negent eum filium an vero contendunt testamentum valere. si testamentum valere contendunt, controversia non est differenda et carbonianum cessat: quod si filium eum negant et ad ipsos potius quasi ad consanguineos hereditatem pertinere dicunt, data bonorum possessione impuberi controversia in tempus pubertatis differtur.
If someone has instituted his son as heir for the least share thus, " ille qui ex illa natus est heres esto", not as his son, and then this person contends that his father died intestate and that he is his own heir (suus heres) to him, it matters whether his coheirs deny that he is a son, or on the contrary contend that the testament is valid. If they contend that the testament is valid, the controversy is not to be deferred and the Carbonianum ceases; but if they deny that he is a son and say that the inheritance pertains rather to themselves as consanguines, with bonorum possessio granted to the impubes, the controversy is deferred until the time of puberty.
Si mater subiecti partus arguatur, an differenda sit quaestio propter statum pueri, quaeritur. et si quidem pupilli status in dubium devocatur, differri quaestio in tempus pubertatis debet, cum metus potest esse, ne minus idonee defendatur: cum vero mater rea postulatur utique integra fide, et maiore constantia causam defensura recenti tempore, dubium non est cognitionem fieri oportere, et post eventum cognitionis, si suppositum apparuerit, actiones hereditariae puero denegandae sunt omniaque perinde habenda, atque si heres scriptus non fuisset.
If the mother is accused of a supposititious birth, the question is raised whether the inquiry should be deferred on account of the child’s status. And if indeed the status of a ward is brought into doubt, the inquiry ought to be deferred to the time of puberty, since there can be a fear lest he be defended less suitably; but when the mother is summoned as defendant, with her good faith unimpaired and, at a time close to the events, about to defend the case with greater constancy, there is no doubt that an inquiry ought to be held; and after the outcome of the inquiry, if it has appeared that the child was foisted in, hereditary actions must be denied to the boy, and all things are to be treated just as if he had not been instituted heir.
Licet mulier, quae partum subiecisse dicitur, decesserit, tamen, si participes maleficii sint, in praesenti cognoscendum est. si autem nemo sit qui puniri possit, quia omnes participes facinoris forte decesserint, secundum carbonianum edictum in tempus pubertatis differenda cognitio est.
Although the woman who is said to have foisted a birth has died, nevertheless, if there are participants in the malefaction, it must be inquired into at present. if however there is no one who can be punished, because perhaps all the participants in the crime have died, according to the carbonian edict the inquiry is to be deferred to the time of puberty.
Carbonianum edictum aptatum est ad contra tabulas bonorum possessionem et intestati, cum et in secundum tabulas in quibusdam casibus possit videri necessarium edictum, veluti si pater familias ita instituerit: " postumus heres esto" vel " postuma heres esto" et negetur esse verum, quod in testamento scriptum est.
Carbonian Edict is adapted to the possession of goods against the tablets and to intestacy, since even in “according to the tablets” cases the edict can seem necessary, for instance if a paterfamilias has thus instituted: “let a posthumous son be heir” or “let a posthumous daughter be heir,” and it is denied that what is written in the testament is true.
Quamvis scripto heredi non promitti bonorum possessionem ex edicto carboniano certum sit, tamen quaestionem status in tempus pubertatis differri procul dubio est. ergo si quidem de parentis bonis simul et de statu controversia fiat, hoc edictum locum habebit: sin vero tantum status, differetur quaestio in tempus pubertatis, sed non ex carboniano, sed ex constitutionibus.
Although it is certain that possession of the estate is not promised to an heir named in writing under the Carbonian edict, nevertheless the question of status is, without doubt, to be deferred until the time of puberty. Therefore, if a controversy arises at once both about the parent’s goods and about status, this edict will apply; but if it is only about status, the question will be deferred until the time of puberty—not under the Carbonian edict, but under the constitutions.
Puberi quamvis minori viginti quinque annis carbonianum non succurrit. sed et si, cum esset pubes, quasi impubes obrepserit bonorumque possessionem accepit, dicendum erit nihil eum egisse: nam et si impubes esset mox pubes factus, finiretur bonorum possessionis emolumentum.
The Carbonianum does not come to the aid of a pubes, even though he be less than twenty-five years. But also, if, while he was pubes, he slipped in as though impubes and accepted bonorum possessio, it must be said that he accomplished nothing: for even if he were impubes and soon became pubes, the benefit of the bonorum possessio would be brought to an end.
Causae cognitio in eo vertitur, ut, si manifesta calumnia appareret eorum, qui infantibus bonorum possessionem peterent, non daretur bonorum possessio. summatim ergo, cum petitur ex carboniano bonorum possessio, debet praetor cognoscere: et si quidem absolutam causam invenerit evidenterque probatur filium non esse, negare debet ei bonorum possessionem carbonianam: si vero ambiguam causam, hoc est vel modicum pro puero facientem, ut non videatur evidenter filius non esse, dabit ei carbonianam bonorum possessionem.
The cognition of the cause turns on this: that, if manifest calumny should appear on the part of those who seek bonorum possessio for infants, bonorum possessio is not to be given. therefore, in summary, when bonorum possessio is sought under the Carbonian [edict], the praetor ought to take cognizance: and if indeed he finds an absolute case and it is clearly proved that he is not a son, he ought to deny to him the Carbonian bonorum possessio; but if the case is ambiguous, that is, even makes a little in favor of the child, so that he does not appear clearly not to be a son, he will grant to him the Carbonian bonorum possessio.
Duae autem sunt causae cognitiones, una dandae carbonianae possessionis, quae habet commodum illud, ut, perinde atque si nullam controversiam pateretur impubes, possessionem accipiat, alia causae cognitio illa, utrum differri debeat in tempus pubertatis cognitio an repraesentari. hoc autem diligentissime praetori examinandum est, an expediat pupillo repraesentari cognitionem an potius differri in tempus pubertatis, et maxime inquirere hoc a cognatis matre tutoribusque pupilli debet. finge esse testes quosdam, qui dilata controversia aut mutabunt consilium aut decedent aut propter temporis intervallum non eandem fidem habebunt: vel finge esse anum obstetricem vel ancillas, quae veritatem pro partu possunt insinuare, vel instrumenta satis idonea ad victoriam vel quaedam alia argumenta, ut magis damnum patiatur pupillus, quod differtur cognitio, quam compendium, quod non repraesentatur: finge pupillum satisdare non posse et admissos in possessionem, qui de hereditate controversiam faciunt, multa posse subtrahere novare moliri: aut stulti aut iniqui praetoris erit rem in tempus pubertatis differre cum summo eius incommodo, cui consultum velit.
But there are two inquiries into the cause: one, for granting Carbonian possession, which has this advantage, that, just as if the impubes were suffering no controversy, he receives possession; the other is that inquiry whether the hearing ought to be deferred to the time of puberty or anticipated. This, moreover, the praetor must examine most diligently—whether it is expedient for the pupil that the inquiry be anticipated, or rather deferred to the time of puberty—and he ought especially to inquire this from the cognates, the mother, and the tutors of the pupil. Imagine there are certain witnesses who, if the controversy is delayed, will either change their plan, or die, or, on account of the interval of time, will not have the same credit; or imagine there is an old woman midwife or maidservants who can insinuate the truth about the birth; or documents (instrumenta) quite suitable for victory, or certain other arguments, so that the pupil would suffer more loss because the inquiry is deferred than the gain because it is not anticipated; imagine the pupil cannot give security, and those admitted into possession, who are making a controversy about the inheritance, can remove many things, alter them, undertake schemes: it will be the part of a foolish or unfair praetor to defer the matter to the time of puberty, with the greatest disadvantage to him whose interests he wishes to consult.
the deified Hadrian also issued a rescript thus: " that a matter is customarily deferred to the time of puberty is done for the sake of wards, lest they be put in peril as to their status before they can protect themselves. moreover, if they have suitable persons by whom they may be defended, and so expeditious a cause that it is in their own interest that it be adjudicated promptly, and their tutors wish to make trial by action: what was devised for them ought not to be observed against the wards, and their status to hang in suspense, when it can already be beyond doubt".
Si is, qui status controversiam filio faciebat et solum se filium dicebat, decesserit et mater ei heres extiterit, si quidem eandem controversiam impuberi mater faciat, qui se ex alia natum adfirmat, quam filius eius faciebat, scilicet ut neget eum filium, idcircoque ad se totam hereditatem ex persona filii sui defuncti pertinere debere: in tempus pubertatis differri iulianus ait, quia nihil interest, suo an hereditario nomine controversiam faciat. plane si mater concedat hunc quoque defuncti filium esse idcircoque partem dimidiam hereditatis solam sibi vindicet ex bonis paternis, non erit iudicium in tempus pubertatis differendum: non enim de paternis, sed de fraternis bonis impuberi fit controversia.
If he who was bringing a status controversy against the son and was saying that he alone was the son has died, and his mother has become his heir, then, if the mother brings the same controversy against a prepubescent (minor), who affirms that he was born from another woman, such as her son was bringing—namely, to deny that he is a son, and therefore that the whole inheritance ought to pertain to herself through the person of her deceased son—Julian says it is to be deferred to the time of puberty, because it makes no difference whether she prosecutes the controversy in her own name or in an hereditary capacity. Clearly, if the mother concedes that this one too is a son of the deceased and on that account vindicates to herself only a half share of the inheritance from the paternal goods, the action is not to be deferred to the time of puberty: for the controversy for the prepubescent is not about paternal, but about fraternal goods.
Ibidem iulianus quaerit: si duo impuberes patiantur status controversiam et alter eorum pubuerit, exspectari alterius quoque pubertas debet, scilicet ut sic de utriusque statu agatur, ne aliquod praeiudicium fiat impuberi per puberis personam.
In the same place Julian asks: if two impuberes undergo a controversy of status and one of them has reached puberty, the puberty of the other too ought to be awaited, namely so that thus the status of each may be litigated, lest any prejudice be caused to the impubes through the person of the pubes.
Si duo impuberes invicem faciant status controversiam, interest, utrum quisque se solum filium dicat an et se. nam si se solum dicat filium, dicendum est debere controversiam ad utriusque pubertatem differri, sive petitor sive possessor sit. si vero alter se solum, alter et se dicat, si quidem ille adoleverit qui se solum dicat, adhuc differtur controversia propter pueritiam eius qui et se dicit, sed de parte, non de toto: de parte enim utique nec litigatur. quod si ille adoleverit qui et se dicit, ille impubes sit qui se solum dicit, non differtur controversia: nec enim patitur impubes status controversiam, sed facit, cum hic pubes et se dicat, illum non neget filium.
If two underage persons make a status controversy against one another, it matters whether each says that he alone is the son, or says both himself (and the other). For if he says that he alone is the son, it must be said that the controversy ought to be deferred until the puberty of both, whether he be the petitioner or the possessor. But if indeed the one says that he alone [is the son], and the other says both himself [and the other], then if the one who says he alone [is the son] has grown up, the controversy is still deferred on account of the boyhood of him who says both himself, but as to the part, not as to the whole: for as to a part, to be sure, there is no litigation. But if he has grown up who says both himself, and he is underage who says that he alone [is the son], the controversy is not deferred: for an underage person does not suffer a status controversy, but makes one, since this one, being of age and saying both himself, does not deny that that one is a son.
Si quis liber et heres esse iussus status controversiam impuberi faciat, qui filius esse et testamentum patris rupisse dicitur, iulianus ait utraque iudicia et hereditatis et libertatis in tempus pubertatis differenda: neutrum enim eorum ita explicari potest, ut non condicioni eius, qui se filium esse contendat, praeiudicetur. ceterae quoque libertatis quaestiones ex testamento pendentes in tempus pubertatis differuntur.
If someone who has been ordered to be free and heir brings a status controversy against an underage person, who is said to be a son and to have broken his father’s testament, Julianus says that both suits, of inheritance and of liberty, are to be deferred until the time of puberty: for neither of them can be decided in such a way that the condition of him who contends that he is a son would not be prejudiced. Other questions likewise of liberty depending on a testament are deferred until the time of puberty.
Cum extaret impubes, qui se filium defuncti diceret, debitoresque negent eum filium esse defuncti et intestati hereditatem ad adgnatum, qui forte trans mare aberit, pertinere: necessarium erit puero carbonianum edictum. sed et absenti erit prospiciendum, ut cautio praestetur.
When there exists a minor who claims himself to be the son of the deceased, and the debtors deny that he is the son of the deceased and that the intestate inheritance pertains to an agnate who perhaps is away across the sea: the Carbonian Edict will be necessary for the boy. But provision must also be made for the absent party, that security be furnished.
Missum autem ex carboniano in possessionem student praetores possessorem constituere. quod si coeperit aut hereditatem petere quasi bonorum possessor carbonianus aut singulas res, rectissime iulianus libro vicensimo quarto digestorum scribit exceptione eum summovendum: contentus enim esse debet hac praerogativa, quod possessorem eum praetor tantisper constituit. si igitur vult hereditatem aut singulas res petere, petat, inquit, directa actione quasi heres, ut ea petitione iudicari possit, an quasi ex liberis heres sit, ne praesumptio carbonianae bonorum possessionis iniuriam adversariis afferat: quae sententia habet rationem et aequitatem.
Moreover, when someone has been sent into possession under the Carbonian title, the praetors strive to establish him as possessor. But if he begins either to claim the inheritance as though a Carbonian bonorum possessor, or individual things, Julian most correctly writes in book 24 of the Digesta that he must be removed by an exception: for he ought to be content with this prerogative, that the praetor has constituted him possessor for the meantime. If therefore he wishes to claim the inheritance or individual things, let him, he says, sue by a direct action as heir, so that by that claim it may be adjudged whether he is heir as it were “from the children,” lest the presumption of Carbonian bonorum possessio bring injury to the adversaries: which opinion has reason and equity.
Currunt autem tempora ad utramque bonorum possessionem separatim, ordinariae quidem, ex quo patrem suum decessisse scit et facultatem bonorum possessionis petendae habuit, carbonianae vero ex eo tempore, ex quo controversiam sibi fieri cognovit.
But the periods run for each of the two kinds of bonorum possession separately: for the ordinary kind, from the time when he knew that his father had died and had the capacity to petition for bonorum possession; for the Carbonian, however, from the time when he became aware that a controversy was being raised against him.
Ideo si ex prima parte edicti bonorum possessionem non petierit, alias poterit ex sequenti parte edicti ad exemplum carboniani accipere bonorum possessionem, alias non poterit. nam si confestim post patris mortem controversia ei facta fuerit, an inter liberos bonorum possessionem accipere possit, simul ad utriusque edicti causam annus cessisse videbitur: si vero interposito tempore scierit controversiam sibi moveri, poterit etiam finito tempore, intra quod ex prima parte bonorum possessionem acceperat, ex sequenti bonorum possessionem petere, quam cum acceperit, perpetuo possessoriis actionibus utetur: sed si post pubertatem contra eum iudicatum fuerit, denegabuntur ei actiones.
Therefore, if he has not sought possession of the goods from the first part of the edict, in some cases he will be able to receive possession of the goods from the subsequent part of the edict after the Carbonian example, in other cases he will not be able. For if immediately after the father’s death a controversy has been raised for him whether he can take possession of the goods among the children, at the same time the year will seem to have lapsed for the case of both edicts; but if, time having intervened, he has learned that a controversy is being stirred up against him, he will be able, even after the period has ended within which he had taken possession of the goods from the first part, to seek possession of the goods from the subsequent part; and when he has received it, he will use possessory actions perpetually: but if after puberty judgment has been given against him, actions will be denied to him.
Si impubes non defendatur idcircoque missus sit in possessionem etiam adversarius eius, actiones hereditarias quis exercebit? et ait iulianus libro vicensimo quarto digestorum curatorem constitui debere, qui omnia curet actiones exerceat. denique scribit etiam eum, qui cum impubere missus est in possessionem, actiones posse adversus curatorem intendere nec esse prohibendum: nullum enim per hoc praeiudicium hereditati fieri: nam et adversus ipsum pupillum, si satis dedisset, recte experiretur.
If a minor is not defended, and for that reason even his adversary has been sent into possession, who will exercise the hereditary actions? And Julian, in the twenty-fourth book of the Digesta, says that a curator must be appointed, who shall take care of everything and exercise the actions. Finally, he writes that even he who has been sent into possession together with the minor can bring actions against the curator and should not be prohibited: for by this no prejudice is done to the inheritance; for he would also rightly bring suit against the pupil himself, if he had given security.
Quotiens impubes satis non dat, mittitur in possessionem adversarius eius, sive satis det sive non det. si velit adversarius committi sibi administrationem, satis dare debet pupillo: ceterum si satis non det, debet curator constitui, per quem bona administrentur. adversarius autem si satis dederit, res, quae tempore periturae aut deteriores futurae sint, distrahere debet: item a debitoribus, qui tempore liberabuntur, exigere debet: cetera cum pupillo possidebit.
Whenever a minor does not give security, his adversary is sent into possession, whether he gives security or does not. If the adversary wishes the administration to be committed to himself, he ought to give security to the pupil; but if he does not give security, a curator ought to be appointed, through whom the goods may be administered. Moreover, if the adversary has given security, he ought to sell off things which with time are going to perish or become worse; likewise he ought to exact from debtors who in due time will be discharged; the rest he will possess together with the pupil.
An autem vescendi causa deminuere possit is qui ex carboniano missus est, videamus. et si quidem satis impubes dedit, sive decrevit praeses sive non, deminuet vescendi causa et hoc minus restituet hereditatis petitori. quod si satis dare non potuit et aliter alere se videtur non posse, deminuendi causa usque ad id, quod alimentis eius necessarium est, mittendus est.
But let us see whether he who has been sent under the Carbonianum can diminish for the sake of feeding. And if indeed a minor has given security, whether the praeses decreed or not, he will diminish for the sake of nourishment and will restore so much the less to the petitioner for the inheritance. But if he could not give security and seems unable otherwise to support himself, he must be sent, for the purpose of diminishing, up to that which is necessary for his aliments.
Nor should it seem a wonder that the inheritance is diminished on account of the aliments of one who perhaps will be adjudged not to be a son, since by the edicts of all the womb is sent into possession and aliments are furnished to the woman on account of him who may not be born; and greater care ought to be applied that the son not perish from hunger than that a smaller inheritance come to the claimant, if it has appeared that he is not a son.
Maxime autem puto, si missus fuerit in possessionem adversarius, desiderandum a praetore, ne instrumenta in possessionem suam redigat: ceterum decipietur pupillus, dum vel instruitur adversarius eius vel etiam intercipere ea potest.
Most of all, however, I think that, if the adversary has been sent into possession, it should be requested of the praetor that he not bring the instruments into his own possession; otherwise the ward will be deceived, while either his adversary is being furnished with them or can even intercept them.
Cum autem in satisdatione et pupillus et adversarius eius cessant, curator constituendus est, qui bona administret et quandoque ei qui iudicio vicerit restituat. quid tamen, si tutores pupilli velint administrare? non erunt audiendi, nisi satis dederint nomine pupilli aut curatores quoque idem ipsi sint constituti.
But when in the furnishing of security both the pupil and his adversary are in default, a curator must be appointed, to administer the goods and at length to restore them to the one who has prevailed in the judgment. What, however, if the tutors of the pupil wish to administer? They are not to be heard, unless they shall have given security in the name of the pupil, or they themselves likewise have been appointed curators.
Post pubertatem quaeritur, an actoris partes sustinere debeat qui ex carboniano missus est in possessionem. et responsum est rei partes eum sustinere debere, maxime si cavit. sed et si non caverat, si nunc paratus sit cavere, quasi possessor conveniendus est: quod si nunc non caveat, possessio transfertur adversario satis offerente: perinde atque si nunc primum ab eo peteretur hereditas.
After puberty it is asked whether the one who has been sent into possession under the Carbonian Edict ought to sustain the plaintiff’s part. And the answer is that he ought to sustain the defendant’s part, especially if he has given security. But even if he had not given security, if he is now ready to give security, he is to be proceeded against as if a possessor; but if he does not give security now, the possession is transferred to the adversary who offers surety, just as if the inheritance were now for the first time being demanded from him.
Si mater eius, cui et de libertate et de hereditate paterna controversia fit, in quaestionem libertatis vocatur, iudicium de matre non semper in tempus pubertatis differendum erit: nam et ipsi, qui subiectus esse dicitur, ex causa repraesentari solet.
If the mother of one with whom there arises a controversy both concerning liberty and concerning the paternal inheritance is called into a question of liberty, the judgment concerning the mother will not always have to be deferred to the time of puberty: for even he himself, who is said to be subject, is accustomed, upon cause shown, to be produced.
Interdum etiam exheredatus filius ex carboniano decreto bonorum possessionem accipiet, si non contra tabulas petit bonorum possessionem, sed ab intestato unde liberi ( quia neget tabulas testamenti patris tales esse, ut secundum eas bonorum possessio dari possit) et dicatur non esse filius.
Sometimes even a disinherited son will receive bonorum possessio under the Carbonian Decree, if he does not seek bonorum possessio against the tablets, but ab intestato unde liberi ( because he denies that his father’s testamentary tablets are such that bonorum possessio can be granted according to them ) and it is asserted that he is not a son.
Si pupillus liberti paterni bonorum possessionem petet, negaretur autem filius patroni esse, quia de paternis bonis nulla controversia ei fieret, differendum hoc iudicium non est. si vero post interpositum carbonianum decretum haec quoque controversia moveretur, hoc iudicium in id tempus differri debet.
If a ward should seek possession of the goods of his father’s freedman, and it would be denied that he is the patron’s son, since no controversy would arise for him concerning his paternal goods, this suit is not to be deferred. if indeed after the Carbonian decree has been interposed this controversy also were stirred, this suit ought to be deferred to that time.
Quaesitum est, an simul et pupillus ex carboniano et scripti heredes secundum tabulas bonorum possessionem haberent. respondi, si filius non esset aut non accepisset contra tabulas vel ab intestato bonorum possessionem, simul et ipsum ex carboniano et scriptos heredes secundum tabulas habituros bonorum possessionem.
It was asked whether both the ward, from the Carbonian [edict], and the written heirs according to the tablets would have possession of the estate at the same time. I answered that, if the son did not exist or had not accepted bonorum possessio against the tablets or from intestacy, then both he himself, from the Carbonian [edict], and the written heirs according to the tablets would have possession of the estate.
Item emancipatus decessit intestato superstite filio impubere, qui se ei suum esse dicit: ego contendo ante emancipationem conceptum atque ideo in mea potestate esse et bona emancipati ad me pertinere. et quidem hunc filium esse constat: sed hactenus de statu eius quaeritur, quod in potestate patris fuerit nec ne: sententia tamen edicti procul dubio ex carboniano admittitur.
Likewise, an emancipated [son] died intestate, with a surviving son under age, who says that he is his suus heir: I contend that he was conceived before the emancipation and therefore is in my power, and that the goods of the emancipated belong to me. And indeed it is established that this is his son; but thus far inquiry is made concerning his status, whether he was in the father’s power or not: however, the tenor of the edict is, beyond doubt, admitted under the Carbonian [Edict].
Quod labeo scribit, quotiens suppositus esse dicitur pupillus, cum quo de patris eius hereditate controversia est, curare praetorem debere, ut is in possessione sit: de eo puto eum velle intellegi, qui post mortem patris familiae, qui se sine liberis decedere credidit, filius eius esse dici coepit: nam eius, qui adgnitus est ab eo, de cuius bonis quaeritur, iustior in ea re causa est quam postumi.
What Labeo writes—that whenever a ward is said to be supposititious, with whom there is a controversy over his father’s inheritance, the praetor ought to see to it that he is in possession—I think he wishes to be understood of the one who, after the death of the paterfamilias (who believed he was dying without children), began to be said to be his son; for the case of one who was acknowledged by the very person whose estate is in question is more just in that matter than that of a posthumous child.
Cum mulier deferente herede iuraverit se praegnatem esse, bonorum possessio ex edicto carboniano dari debet, vel denegari, si illa heredi detulit iusiurandum, cum causa cognita detur possessio, ne aut heredi bonorum possessio data faciat praeiudicium aut denegata ius ordinarium eripiat pupillo.
When a woman, with the heir tendering the oath, has sworn that she is pregnant, possession of the goods under the Carbonian Edict ought to be granted; or it ought to be denied, if she has tendered the oath to the heir, since possession is given after the case has been examined, lest either the granting of possession of goods to the heir create prejudice, or, if denied, it snatch away the ordinary right from the pupil.
Cum sine beneficio praetoris qui patitur controversiam filius heres esse potest, forte quia scriptus est, edicto carboniano locus non est: ac similiter cum certum est, quamvis filius sit, eum tamen heredem non fore, veluti si titio herede instituto postumus aut impubes exheredatus negetur filius. nec ad rem pertinet, quod interest illius in quibusdam filium esse, veluti propter fratris ex alia matre nati bona vel iura libertorum et sepulchrorum: istos enim casus ad carbonianum constat non pertinere.
When, without the beneficium of the praetor who allows the controversy, a son can be heir—perhaps because he is named—there is no place for the Carbonian edict; and similarly when it is certain that, although he is a son, nevertheless he will not be heir, as, for example, if, with Titius instituted as heir, a posthumous child or an impubes disinherited is denied to be a son. Nor does it pertain to the matter that it is to his interest in certain respects to be a son, as on account of the goods of a brother born of another mother, or the rights of freedmen and of sepulchres; for it is agreed that those cases do not pertain to the Carbonian edict.
Scriptus heres, contra quem filius impubes, qui subiectus dicitur, ex edicto primo bonorum possessionem petit, exemplo legitimi secundum tabulas interim accipere non potest. quod si medio tempore scriptus vel ille, qui intestati possessionem habere potuerit, moriantur, heredibus eorum succurrendum erit: quid enim, si non potuerunt adire hereditatem iure cessante vel ob litem in dubio constituti?
A written heir, against whom an underage son, who is said to be subject, seeks by the First Edict possession of the goods, cannot in the meantime be admitted, on the model of the legitimate heir, to possession according to the tablets. But if in the meantime either the written heir, or the one who might have been able to have possession as intestate, should die, succor must be given to their heirs: for what if they were not able to enter upon the inheritance with the right in abeyance, or were set in doubt on account of a lawsuit?
Titia post mortem mariti sui postumam enixa est: eidem titiae crimen adulterii sempronius apud praesidem provinciae obiecit: quaero, an in tempus pubertatis quaestio adulterii differri debeat, ne praeiudicium postumae fiat. paulus respondit, si ei pupillae, de qua quaeritur, bonorum paternorum quaestio non moveatur, sine causa tutores desiderare adulterii quoque quaestionem in tempus pubertatis pupillae differri.
Titia, after the death of her husband, brought forth a posthumous daughter: against that same Titia Sempronius brought the charge of adultery before the governor of the province. I ask whether the inquiry into adultery ought to be deferred to the time of puberty, lest prejudice be done to the posthumous girl. Paulus responded that, if as to that ward about whom inquiry is made no question concerning the father’s goods is set in motion, the guardians desire without cause that the inquiry into adultery also be deferred to the time of the ward’s puberty.
Quaeritur, an impubes, qui bonorum possessionem ex carboniano accepit, si, antequam possessio ad eum translata fuerit, pubes factus sit, petitoris partibus fungi debeat. respondit in eo, quod a possessore petet, probationem ei incumbere.
It is asked whether a minor, who has received possession of the estate under the Carbonian edict, if, before the possession has been transferred to him, he has become of age, ought to perform the part of the petitioner. He replied that, as to that which he will seek from the possessor, the proof is incumbent upon him.
Non autem omnes tabulas praetor sequitur hac parte edicti, sed supremas, hoc est eas, quae novissimae ita factae sunt, post quas nullae factae sunt: supremae enim hae sunt non quae sub ipso mortis tempore factae sunt, sed post quas nullae factae sunt, licet hae veteres sint.
Not, however, does the praetor follow all the tablets in this part of the edict, but the last ones, that is, those which have been made most recently, after which none have been made: for “last” are not those which were made at the very moment of death, but those after which none were made, although these may be old.
Sufficit autem extare tabulas, etsi non proferantur, si certum sit eas exstare. igitur etsi apud furem sint vel apud eum, apud quem depositae sunt, dubitari non oportet admitti posse bonorum possessionem: nec enim opus est aperire eas, ut bonorum possessio secundum tabulas agnoscatur.
It suffices, moreover, that the tablets exist, even if they are not produced, provided it is certain that they exist. Therefore, even if they are with a thief or with him with whom they were deposited, there ought to be no doubt that possession of the estate can be admitted: for there is no need to open them, in order that possession of the estate according to the tablets may be recognized.
Sed si unum fecerit testator quasi testamentum, aliud quasi exemplum, si quidem id extat quod voluit esse testamentum, bonorum possessio petetur, si vero id quod exemplum erat, bonorum possessio peti non poterit, ut pomponius scripsit.
But if the testator made one, as it were, a testament, and another, as it were, a copy, then if that is extant which he wished to be the testament, possession of the estate will be sought; but if, however, that which was the copy [is extant], possession of the estate cannot be sought, as Pomponius wrote.
Exigit praetor, ut is, cuius bonorum possessio datur, utroque tempore ius testamenti faciendi habuerit, et cum facit testamentum et cum moritur. proinde si impubes vel furiosus vel quis alius ex his qui testamentum facere non possunt testamentum fecerit, deinde habens testamenti factionem decesserit, peti bonorum possessio non poterit. sed et si filius familias putans se patrem familias testamentum fecerit, deinde mortis tempore pater familias inveniatur, non potest bonorum possessio secundum tabulas peti.
The praetor requires that the person to whom bonorum possessio is given shall have had the right of making a testament at both times, both when he makes the testament and when he dies. Accordingly, if an impubes (a minor) or a furiosus (an insane person), or someone else among those who cannot make a testament, has made a testament, and afterwards, having testamenti factio (testamentary capacity), has died, bonorum possessio cannot be sought. And likewise, if a filius familias, thinking himself a pater familias, has made a testament, and then at the time of death it is found that a pater familias exists (i.e., he is still a filius familias), bonorum possessio according to the tablets cannot be sought.
but if a filius familias, a veteran, makes [a testament] of his castrense peculium, and then, having been emancipated or otherwise made paterfamilias, dies, bonorum possessio of his estate can be sought. but if someone has had testamentary capacity at both times, but has not had it in the intermediate time, bonorum possessio according to the tablets can be sought.
Si quis autem testamentum fecerit, deinde amiserit testamenti factionem vel furore vel quod ei bonis interdictum est, potest eius peti bonorum possessio, quia iure testamentum eius valet: et hoc generaliter de omnibus huiusmodi dicitur, qui amittant mortis tempore testamenti factionem, sed ante factum eorum testamentum valet.
But if someone has made a testament, and then has lost testamentary capacity either through frenzy or because he has been interdicted from his goods, the possession of his goods can be sought, because by law his testament is valid; and this is said generally of all of this sort, who lose testamentary capacity at the time of death, but the testament made before by them is valid.
Si rosae sint a muribus tabulae vel linum aliter ruptum vel vetustate putrefactum vel situ vel casu, et sic videntur tabulae signatae, maxime si proponas vel unum linum tenere. si ter forte vel quater linum esset circumductum, dicendum est signatas tabulas eius extare, quamvis vel incisa vel rosa sit pars uni.
If the tablets have been gnawn by mice, or the linen cord otherwise broken, or putrefied by age, or by mold, or by chance, yet the tablets are regarded as sealed, especially if you allege that even a single thread holds. If perchance the cord had been wound three or four times, it must be said that his sealed tablets are extant, although a part of one thread has been either cut or gnawn.
Aequissimum ordinem praetor secutus est: voluit enim primo ad liberos bonorum possessionem contra tabulas pertinere, mox, si inde non sit occupata, iudicium defuncti sequendum. exspectandi igitur liberi erunt, quamdiu bonorum possessionem petere possunt: quod si tempus fuerit finitum aut ante decesserint vel repudiaverint vel ius petendae bonorum possessionis amiserint, tunc revertetur bonorum possessio ad scriptos.
The praetor followed a most equitable order: for he wished at first that possession of the estate contrary to the tablets (will) should pertain to the children; then, if it were not claimed from that source, the judgment of the deceased was to be followed. Therefore the children must be awaited so long as they are able to petition for possession of the estate; but if that time has expired, or they have died beforehand, or have repudiated, or have lost the right of petitioning for possession of the estate, then possession of the estate will revert to the written heirs.
Si sub condicione heres institutus filius sit, iulianus peraeque putavit secundum tabulas competere ei quasi scripto bonorum possessionem, qualisqualis condicio sit, etiam si haec " si navis ex asia venerit": et quamvis defecerit condicio, praetor tamen filium, qui admiserit secundum tabulas, tueri debebit ac si contra tabulas acceperit: quae tuitio ei qui emancipatus est necessaria est.
If a son has been instituted heir under a condition, Julian likewise thought that bonorum possessio secundum tabulas would be available to him as though he were written in, whatever the condition may be, even if it be this: “if the ship comes from Asia”; and although the condition fails, nevertheless the praetor ought to protect the son who has been admitted secundum tabulas, as if he had received contra tabulas; which protection is necessary for one who has been emancipated.
Pro qua quisque parte heres scriptus est, pro ea accipiet bonorum possessionem, sic tamen, ut, si non sit qui ei concurrat, habeat solus bonorum possessionem: quamdiu tamen ex heredibus unus deliberat, utrum admittat bonorum possessionem an non, portio bonorum possessionis eius coheredi non defertur.
According to the share for which each person has been written as heir, for that share he shall receive possession of the goods, provided, however, that if there is no one who competes with him, he shall have possession of the goods alone: nevertheless, so long as one of the heirs is deliberating whether to admit possession of the goods or not, that portion of the possession of the goods is not tendered to his coheir.
Si primus quidem ita substitutus sit, si intra decem, secundus, si post decem intra quattuordecim annos: si quidem intra decem decesserit, primus solus heres erit et accipiet bonorum possessionem, si vero post decem intra quattuordecim, secundus solus heres erit et accipiet bonorum possessionem, nec sibi iunguntur, cum ad suam quisque causam substitutus sit.
If the first has been substituted thus—“if within ten [years]”—and the second—“if after ten within fourteen years”: if indeed he dies within ten, the first alone will be heir and will receive possession of the goods; but if after ten within fourteen, the second alone will be heir and will receive possession of the goods; nor are they joined together, since each has been substituted for his own case.
Defertur bonorum possessio secundum tabulas primo gradu scriptis heredibus, mox illis non petentibus sequentibus, non solum substitutis, verum substituti quoque substitutis, et per seriem substitutos admittimus. primo gradu autem scriptos accipere debemus omnes, qui primo loco scripti sunt: nam sicuti ad adeundam hereditatem proximi sunt, ita et ad bonorum possessionem admittendam.
Possession of the goods according to the tablets is conferred upon the heirs written in the first degree, then, if they do not petition, upon those next in order, not only upon substitutes, but even upon the substitutes of a substitute; and we admit those substituted in a series. By “those written in the first degree” we ought to understand all who are written in the first place: for just as they are the nearest for entering upon the inheritance, so also for being admitted to the possession of the goods.
Siquis ita instituerit heredes: " uter ex fratribus meis seiam uxorem duxerit, ex dodrante mihi heres esto, uter non duxerit, ex quadrante heres esto", si quidem mortua fuerit seia, aequas partes habituros heredes constat: quod si ab altero uxor ducta fuerit, dodrantem et quadrantem eis competere: bonorum autem possessionem, antequam existat condicio, neutrum petere.
If anyone should institute heirs thus: "whichever of my brothers shall have taken seia as wife, let him be my heir for three-quarters; whichever shall not have taken her, let him be heir for one-quarter," if indeed seia has died, it is settled that the heirs will have equal shares: but if the wife has been taken by one of them, the three-quarters and the quarter accrue to them: moreover, the possession of the estate, before the condition comes into existence, neither may claim.
Si duo sint heredes instituti primus et secundus, secundo tertius substitutus, omittente secundo bonorum possessionem tertius succedit: quod si tertius noluerit hereditatem adire vel bonorum possessionem accipere, reccidit bonorum possessio ad primum. nec erit ei necesse petere bonorum possessionem, sed ipso iure ei adcrescet: heredi enim scripto sicut portio hereditatis, ita et bonorum possessio adcrescit.
If two heirs are instituted, a first and a second, and a third is substituted to the second, upon the second’s omitting the bonorum possessio the third succeeds; but if the third is unwilling to enter upon the inheritance or to accept the bonorum possessio, the bonorum possessio reverts to the first. Nor will it be necessary for him to petition for the bonorum possessio, but by the law itself it will accrue to him: for to the written heir, just as the share of the inheritance, so also the bonorum possessio accrues.
Si servus heres scriptus sit, ei domino defertur bonorum possessio, ad quem hereditas pertinebit: ambulat enim cum dominio bonorum possessio. quare si mortis tempore stichus heres institutus fuit servus sempronii nec sempronius eum iussit adire, sed vel decessit vel etiam eum alienavit et coepit esse septicii: evenit, ut, si septicius eum iusserit, septicio deferatur bonorum possessio: ad hunc enim hereditas pertinet. unde si per multos dominos transierit servus tres vel plures, novissimo dabimus bonorum possessionem.
If a slave is written as heir, the possession of the goods is tendered to his master, to whom the inheritance will pertain: for the possession of the goods “walks” with dominion. Therefore, if at the time of death Stichus, instituted as heir, was the slave of Sempronius, and Sempronius did not order him to enter upon it, but either died or even alienated him and he began to belong to Septicius, it comes about that, if Septicius orders him, the possession of the goods is tendered to Septicius: for to this man the inheritance pertains. Whence, if the slave has passed through many masters, three or more, we will give the possession of the goods to the most recent.
Si sub condicione heres quis institutus sit et accepta bonorum possessione secundum tabulas condicio defecerit, interdum evenit, ut res possessori concedenda sit, ut puta si filius sit emancipatus sub condicione heres institutus: nam si defecerit condicio, attamen secundum tabulas bonorum possessionem eum accipere iulianus scribit. sed et si is fuerit, qui ab intestato bonorum possessor futurus esset, tuendum esse scripsit, et hoc iure utimur.
If someone has been instituted heir under a condition, and, the possession of the goods according to the tablets having been accepted, the condition has failed, it sometimes happens that the property is to be conceded to the possessor, for instance if a son has been emancipated and instituted heir under a condition: for if the condition has failed, nevertheless Julianus writes that he may receive the possession of the goods according to the tablets. But also if he is one who would be the possessor of the goods from intestacy, he wrote that he must be protected, and we use this law.
Videndum, an legata ab eis debeantur. et filius quidem quasi contra tabulas bonorum possessione accepta rem habere videtur, ceteri vero quasi ab intestato: et ideo filius liberis parentibusque legata relicta solis praestare cogetur, ceteris non. plane ei, cui ab intestato fideicommissum relictum est, erit praestandum, quasi videatur hoc ipso fraudatus, quod ex testamento petita sit bonorum possessio.
It must be considered whether legacies are owed by them. And indeed the son, upon acceptance of bonorum possessio as if against the tablets, is deemed to hold the estate, whereas the others are as if by intestacy; and therefore the son will be compelled to render only the legacies left to children and to parents, not to the others. Plainly, to him to whom a fideicommissum was left as upon intestacy, it must be rendered, as he would seem by this very fact to have been defrauded, that bonorum possessio was sought on the testament.
Hi demum sub condicione heredes instituti bonorum possessionem secundum tabulas etiam pendente condicione necdum impleta petere possunt, qui utiliter sunt instituti: quod si inutiliter quis sit institutus, nec ad bonorum possessionem inutilis institutio proficit.
Only those heirs instituted under a condition can petition for possession of the estate according to the tablets even while the condition is pending and not yet fulfilled, who have been instituted validly; but if someone has been instituted invalidly, an invalid institution does not even avail for possession of the estate.
Cum tabulae testamenti plurium signis signatae essent et quaedam ex his non parent, septem tamen signa maneant, sufficit ad bonorum possessionem dandam septem testium signa comparere, licet non omnium qui signaverint maneant signa.
When the tablets of the testament have been sealed with the seals of several persons and some of these do not appear, yet seven seals remain, it is sufficient for granting possession of the estate that the seals of seven witnesses be in evidence, although the seals of all who have sealed do not remain.
Si ita scriptum sit: " sempronius ex parte dimidia heres esto. titius, si navis ex asia venerit, ex parte tertia heres esto. idem titius, si navis ex asia non venerit, ex parte sexta heres esto": titius non ex duabus partibus heres scriptus, sed ipse sibi substitutus intellegi debet ideoque non ex maiore parte quam tertia scriptus videtur.
If it is written thus: "Sempronius shall be heir as to a half share. Titius, if the ship shall have come from Asia, shall be heir as to a third part. The same Titius, if the ship shall not have come from Asia, shall be heir as to a sixth part": Titius is not instituted heir for two shares, but must be understood as substituted to himself; and therefore he appears to be instituted for no greater share than a third.
Quidam testamentum in tabulis sibi fecit, filio autem impuberi per nuncupationem substituit. respondi sententiam praetoris in danda bonorum possessione eam esse, ut separatim patris, separatim filii heredes aestimari debeant: nam quemadmodum scripto filii heredi separatim ab heredibus patris, ita nuncupato potest videri separatim a scriptis patris heredibus bonorum possessio dari.
A certain man made for himself a testament on tablets, and for his under-age son he appointed a substitute by nuncupation. I responded that the praetor’s judgment in granting possession of the goods is this: that the heirs of the father and the heirs of the son ought to be assessed separately. For just as by writing the son’s heir is considered separately from the father’s heirs, so by nuncupation the possession of the goods can be seen to be given separately from the father’s written heirs.
" qui ex liberis meis impubes supremus morietur, ei titius heres esto". duobus peregre defunctis si substitutus ignoret, uter novissimus decesserit, admittenda est iuliani sententia, qui propter incertum condicionis etiam prioris posse peti possessionem bonorum respondit.
"whoever of my children, being under age, shall die last, to him let titius be heir." if two have died abroad, and the substitute does not know which passed away most recently, the opinion of Julian is to be admitted, who answered that, because of the uncertainty of the condition, possession of the goods can also be sought of the one who died earlier.
Testamento facto titius adrogandum se praebuit ac postea sui iuris effectus vita decessit. scriptus heres si possessionem petat, exceptione doli mali summovebitur, quia dando se in adrogandum testator cum capite fortunas quoque suas in familiam et domum alienam transferat. plane si sui iuris effectus codicillis aut aliis litteris eodem testamento se mori velle declaraverit, voluntas, quae defecerat, iudicio recenti redisse intellegetur, non secus ac si quis aliud testamentum fecisset ac supremas tabulas incidisset, ut priores supremas relinqueret.
After a testament had been made, Titius offered himself to be arrogated, and afterwards, having become sui iuris, he departed this life. If the instituted heir seeks possession, he will be removed by the exception of dolus malus, because by giving himself into arrogation the testator transfers, along with his caput, his fortunes also into another’s family and house. Plainly, if, after becoming sui iuris, he has declared by codicils or by other writings that he wishes to die under the same testament, the will—which had failed—will be understood, by a recent judgment, to have returned, not otherwise than if someone had made another testament and had cut (cancelled) the final tablets, so as to leave the earlier final ones.
nor should anyone think that a testament is constituted by mere will: for the inquiry is not chiefly about the law of the testament, but about the force of the exception. which, in this suit, although it is opposed to the plaintiff, is nevertheless evaluated according to the person of him who raises it.
Ut scriptus heres adgnoscere possit bonorum possessionem, exigendum puto, ut et demonstratus sit propria demonstratione et portio adscripta ei inveniri possit, licet sine parte institutus sit: nam qui sine parte heres institutus est, vacantem portionem vel alium assem occupat. quod si ita heres scriptus sit, ut interdum excludatur a testamento, eo quod non invenitur portio, ex qua institutus est, nec bonorum possessionem petere potest. id evenit, si quis ita heredem instituat: " titius quanta ex parte priore testamento eum heredem scriptum habeo, heres esto" vel " quanta ex parte codicillis scriptum eum habeo, heres esto", sic scriptus non inveniatur.
In order that the written (named) heir may be able to claim possession of the estate, I think it must be required both that he be identified by his own proper designation and that the portion adscript to him can be found, although he may have been instituted without a share: for one instituted as heir without a share occupies the vacant portion or another as (unit-share). But if the heir is so written that he is sometimes excluded from the testament because the portion from which he was instituted is not found, he cannot even petition for possession of the estate. This happens if someone thus institutes an heir: " titius, to the extent in which in the prior testament I have him written as heir, let him be heir" or " to the extent in which in the codicils I have him written, let him be heir," and no such writing is found.
Emancipatus a parente in ea causa est, ut in contra tabulas bonorum possessione liberti patiatur exitum. quod aequissimum praetori visum est, quia a parente beneficium habuit bonorum quaerendorum: quippe si filius familias esset, quodcumque sibi adquireret, eius emolumentum patri quaereret. et ideo itum est in hoc, ut parens exemplo patroni ad contra tabulas bonorum possessionem admittatur.
One emancipated by his parent is in such a position that, in a bonorum possessio contra tabulas (against-the-tablets, i.e., against the will) of his freedman, he must suffer exclusion. This seemed most equitable to the praetor, because he had from his parent the beneficium of acquiring property; indeed, if he were a filius familias, whatever he acquired for himself, he would be procuring the emolument for his father. And therefore it has been proceeded to this: that the parent, on the example of a patron, is admitted to the bonorum possessio contra tabulas.
Nepos ab avo manumissus dedit se adrogandum patri suo: sive manens in potestate patris decesserit sive manumissus diem suum obeat, solus admittetur avus ad eius successionem ex interpretatione edicti, quia perinde defert praetor bonorum possessionem atque si ex servitute manumissus esset: porro si hoc esset, aut non esset adrogatus, quia adrogatio liberti admittenda non est, aut si obrepserit, patroni tamen nihilo minus ius integrum maneret.
A grandson, manumitted by his grandfather, gave himself to be adrogated by his own father: whether he has died while remaining in the power of his father, or, having been manumitted, meets his day, the grandfather alone will be admitted to his succession by interpretation of the edict, because the praetor tenders bonorum possession just as if he had been manumitted from servitude; moreover, if that were so, either he would not be adrogated, because adrogation of a freedman is not to be admitted, or, if it has slipped through, nevertheless the patron’s right would remain unimpaired.
Est et alius casus, quo bonorum possessionem contra tabulas parens non accipit, si forte filius militare coeperit: nam divus pius rescripsit patrem ad contra tabulas bonorum possessionem venire non posse.
There is also another case, in which a parent does not receive the bonorum possession against the tablets (i.e., contrary to the will), if perchance the son has begun to serve as a soldier: for the deified Pius wrote in a rescript that the father cannot come to the bonorum possession contra tabulas.
Paconius ait: si turpes personas, veluti meretricem, a parente emancipatus et manumissus heredes fecisset, totorum bonorum contra tabulas possessio parenti datur: aut constitutae partis, si non turpis heres esset institutus.
Paconius says: if, having been emancipated and manumitted by a parent, he had made disgraceful persons—for example, a meretrix (prostitute)—his heirs, possession of the whole estate against the will (contra tabulas) is given to the parent; or of the constituted share, if a non-disgraceful heir had been instituted.
Si filius emancipatus testamento suo patrem suum praeterierit sive heredem instituerit, fideicommissa non cogetur pater praestare ex sua parte, quae ei debetur, etiamsi adierit hereditatem. sed et si filia vel neptis manumissa sit et pater vel avus praeteritus petat bonorum possessionem, eadem quae in filio dicenda sunt.
If an emancipated son in his testament has passed over his father, or has instituted him as heir, the father will not be compelled to render fideicommissa out of his share which is owed to him, even if he has entered upon the inheritance. But also, if a daughter or granddaughter has been manumitted and the father or grandfather, being pretermitted, seeks the bonorum possessio, the same things that are to be said in the case of a son are to be said.
Divus traianus filium, quem pater male contra pietatem adficiebat, coegit emancipare. quo postea defuncto, pater ut manumissor bonorum possessionem sibi competere dicebat: sed consilio neratii prisci et aristonis ei propter necessitatem solvendae pietatis denegata est.
The deified Trajan compelled a father who was treating his son badly, contrary to pietas, to emancipate him. After he later died, the father, as manumitter, said that the possession of the goods (bonorum possessio) was competent to him; but, on the advice of Neratius Priscus and Aristo, it was denied to him because of the necessity of discharging pietas.
Non dubium est, quin debeant ratae voluntates esse eorum, qui in hosticolo suprema iudicia sua quoquo modo ordinassent ibidemque diem suum obissent. quamquam enim distet condicio militum ab his personis constitutiones principales separent, tamen qui in procinctu versantur cum eadem pericula experiantur, iura quoque eadem merito sibi vindicant. omnes igitur omnino, qui eius sunt condicionis, ut iure militari testari non possint, si in hosticolo deprehendantur et illic decedant, quomodo velint et quomodo possint, testabuntur, sive praeses quis sit provinciae sive legatus sive quis alius, qui iure militari testari non potest.
It is not doubtful that the wills should be ratified of those who, in hostile territory, had in whatever way arranged their last dispositions and there met their day. For although the condition of soldiers differs from these persons and the principal constitutions set them apart, nevertheless those who are engaged in the battle-line, since they undergo the same dangers, rightly claim for themselves the same rights. Therefore absolutely all who are of such a condition that they cannot testate by military law, if they are caught in hostile territory and die there, will make their testament as they wish and as they can, whether someone be governor of a province or a legate or any other who cannot testate by military law.
Patronorum querellas adversus libertos praesides audire et non translaticie exsequi debent, cum, si ingratus libertus sit, non impune ferre eum oporteat. sed si quidem inofficiosus patrono patronae liberisve eorum sit, tantummodo castigari eum sub comminatione aliqua severitatis non defuturae, si rursum causam querellae praebuerit, et dimitti oportet. enimvero si contumeliam fecit aut convicium eis dixit, etiam in exilium temporale dari debebit: quod si manus intulit, in metallum dandus erit: idem et si calumniam aliquam eis instruxit vel delatorem subornavit vel quam causam adversus eos temptavit.
Governors ought to hear patrons’ complaints against freedmen and not dispose of them in a merely traditional manner, since, if a freedman is ungrateful, he ought not to bear it with impunity. But if he is indeed undutiful to the patron, patroness, or their children, he ought only to be chastised with a warning that severity will not be lacking should he again supply a cause for complaint, and then be dismissed. However, if he has committed an outrage or uttered an insult against them, he ought even to be given into temporary exile; but if he has laid hands on them, he is to be consigned to the mines; the same is to be done if he has engineered any calumny against them, or suborned an informer, or attempted any action against them.
Si quis tutor datus, cum sibi legata esset ancilla et rogatus eam manumittere, manumiserit adgnito legato et tutela pupilli se excusaverit, divi severus et antoninus rescripserunt hunc esse quidem patronum, sed omni commodo patronatus carere.
If a tutor appointed, when a female slave had been bequeathed to him by legacy and he had been asked to manumit her, has manumitted her upon acknowledging the legacy and has excused himself from the tutelage of the pupil, the deified Severus and Antoninus issued a rescript that he is indeed the patron, but is to lack every benefit of patronage.
Adigere iureiurando, ne nubat liberta vel liberos tollat, intellegitur etiam is, qui libertum iurare patitur. sed si ignorante eo suus filius adegerit stipulatus fuerit, nihil ei nocebit: certe si iussu patroni is qui in potestate est idem fecerit, dicendum est eum hac lege teneri.
To compel by oath that a freedwoman not marry or not raise children is understood also of one who allows a freedman to swear. But if, he being unaware, his own son has compelled and has stipulated, it will do him no harm; certainly, if by the order of the patron the person in his power has done the same, it must be said that he is held by this law.
Si patronus libertam iureiurando adegerit, ut sibi nuberet, si quidem ducturus eam adegit, nihil contra legem fecisse videbitur: si vero non ducturus propter hoc solum adegit, ne alii nuberet, fraudem legi factam iulianus ait et perinde patronum teneri, ac si coegisset iurare libertam non nupturam.
If a patron has compelled a freedwoman by an oath to marry him, then if he compelled her being indeed about to wed her, he will seem to have done nothing against the law; but if, not being about to wed, he compelled her for this sole reason, that she might not wed another, Julianus says a fraud upon the law has been committed, and the patron is held liable just as if he had forced the freedwoman to swear that she would not marry.
Divus vespasianus decrevit, ut, si qua hac lege venierit, ne prostitueretur et, si prostituta esset, ut esset libera, si postea ab emptore alii sine condicione veniit, ex lege venditionis liberam esse et libertam prioris venditoris.
The deified Vespasian decreed that, if any woman should be sold under this stipulation, that she not be prostituted, and if she was prostituted, that she be free; and if afterwards she was sold by the buyer to another without the condition, by the law of the sale she is free and the freedwoman of the prior seller.
Mandatis imperatorum cavetur, ut etiam in provinciis praesides de querellis patronorum ius dicentes secundum delictum admissum libertis poenas irrogent. interdum illae poenae a liberto ingrato exiguntur: vel pars bonorum eius aufertur et patrono datur: vel fustibus caeditur et ita absolvitur.
In the mandates of the emperors it is provided that, even in the provinces, the governors, speaking the law on the complaints of patrons, impose penalties upon freedmen according to the delict committed. Sometimes those penalties are exacted from an ungrateful freedman: either a part of his goods is taken away and given to the patron; or he is beaten with rods and thus is absolved.
Ut in bonis liberti locum quidam non haberent, lege excipiuntur: rei capitalis damnatus, si restitutus non est: si index cuius flagitii sit fueritve vel maior annis viginti quinque cum esset, capitis accusaverit libertum paternum.
So that certain persons should not have a place in the goods of the freedman, they are excepted by law: one condemned on a capital charge, if he has not been restored; if he is or has been an informer of some flagitious deed; or, when he was over twenty-five years of age, has accused his father’s freedman on a capital charge.
Eum patronum, qui capitis libertum accusasset, excludi a bonorum possessione contra tabulas placuit. labeo existimabat capitis accusationem eam esse, cuius poena mors aut exilium esset. qui nomen detulit, accusasse intellegendus est, nisi abolitionem petit: idque etiam proculo placuisse servilius refert.
It was decided that a patron who had accused his freedman on a capital charge should be excluded from possession of the estate against the will. Labeo judged a capital accusation to be one whose penalty was death or exile. He who has laid information is to be understood to have accused, unless he seeks abolition; and Servilius reports that this too pleased Proculus.
Si libertus minorem se centenario in fraudem legis fecerit, ipso iure non valebit id quod factum est, et ideo quasi in centenarii liberti bonis locum habebit patronus: quidquid igitur quaqua ratione alienavit, ea alienatio nullius momenti est. plane si qua alienaverit in fraudem patroni, adhuc tamen post alienationem maior centenario remaneat, alienatio quidem vires habebit, verumtamen per favianam et calvisianam actionem revocabuntur ea quae per fraudem sunt alienata: et ita iulianus saepissime scribit eoque iure utimur. diversitatis autem ea ratio est.
If a freedman has made himself less than a centenarian in fraud of the law, by the law itself that which has been done will not be valid, and therefore the patron will have standing as if in the goods of a centenarian freedman: whatever, then, he has alienated by whatever method, that alienation is of no moment. Clearly, if he has alienated anything in fraud of the patron, yet still after the alienation he remains greater than a centenarian, the alienation indeed will have force; nonetheless, through the Favian and Calvisian action those things which have been alienated through fraud will be recalled: and thus Julian writes very often, and we employ this law. The reason for the diversity, however, is this.
whenever an alienation is made in fraud of the law, what has been done is not valid: and it is done in fraud when someone makes himself less than a centenarius for this purpose, that he may overturn the precept of the law. But when, the alienation having been made, nonetheless he is a centenarius, it does not seem to have been done in fraud of the law, but only in fraud of the patron: therefore by the Favian or Calvisian action that which has been alienated will be recalled.
Si quis plures res simul alienando minorem se centenario fecerit, quarum una revocata vel omnium partibus maior centenario efficitur: utrum revocamus omnes an pro rata ex singulis, ut centenarium eum faciamus? magisque est, ut omnium rerum alienato facta nullius momenti sit.
If someone, by alienating several things at the same time, has made himself less than a centenarius, and by revoking one of them, or by portions of all, he would become greater than the centenary: do we revoke all, or pro rata from each, so that we make him a centenarius? The sounder view is that, the alienation of all the things having been made, the deed is of no moment.
Divi fratres in haec verba rescripserunt: " comperimus a peritioribus dubitatum aliquando, an nepos contra tabulas aviti liberti bonorum possessionem petere possit, si eum libertum pater patris, cum annorum viginti quinque esset, capitis accusasset, et proculum, sane non levem iuris auctorem, in hac opinione fuisse, ut nepoti in huiusmodi causa non putaret dandam bonorum possessionem. cuius sententiam nos quoque secuti sumus, cum rescriberemus ad libellum caesidiae longinae: sed et volusius maecianus amicus noster ut et iuris civilis praeter veterem et bene fundatam peritiam anxie diligens religione rescripti nostri ductus sit ut coram nobis adfirmavit non arbitratum se aliter respondere debere. sed cum et ipso maeciano et aliis amicis nostris iuris peritis adhibitis plenius tractaremus, magis visum est nepotem neque verbis neque sententia legis aut edicti praetoris ex persona vel nota patris sui excludi a bonis aviti liberti: plurium etiam iuris auctorum, sed et salvi iuliani amici nostri clarissimi viri hanc sententiam fuisse".
The deified brothers wrote back in these words: " we have learned from more expert jurists that it has sometimes been doubted whether a grandson can seek possession of the estate against the will of his grandfather’s freedman, if the father’s father, when he was twenty-five years old, had accused that freedman on a capital charge; and that Proculus, assuredly no slight authority in law, was of this opinion, namely that in a case of this kind possession of the estate should not be granted to the grandson. We too followed his view when we wrote back to the petition of Caesidia Longina: but also Volusius Maecianus, our friend—besides his old and well-founded expertise in the civil law, anxiously diligent—was, as he affirmed before us, led by scrupulous regard for the authority of our rescript to think that he ought not to answer otherwise. But when, with Maecianus himself and other of our friends skilled in the law called in, we treated the matter more fully, it seemed rather that the grandson is not excluded, either by the words or by the sense of the statute or of the praetor’s edict, from the goods of his grandfather’s freedman by reason of the person or the censure of his father: and that this was the opinion of several other legal authors, and also of Salvius Julianus, our friend, a most illustrious man".
Item quaesitum est, si patroni filius capitis accusaverit libertum, an hoc noceat liberis ipsius. et proculus quidem in hac fuit opinione notam adspersam patroni filio liberis eius nocere, iulianus autem negavit: sed hic idem quod iulianus erit dicendum.
Likewise it was asked, if the patron’s son has accused the freedman on a capital charge, whether this would harm his children. And proculus indeed was of this opinion, that the mark (nota) cast upon the patron’s son would harm his children; but iulianus denied it: and here the same as iulianus must be said.
Excluditur contra tabulas bonorum possessione patronus et si ex unica heres instituatur et id, quod deest ad supplendam debitam portionem, per servum iudicio liberti sine condicione et dilatione ei, hereditate vel legato sive fideicommisso, quaeri potest.
The patron is excluded by a bonorum possessio contra tabulas even if he is appointed as sole heir; and whatever is lacking to make up the owed portion can be sought for him, through a slave, by the freedman’s action, without condition and without delay, by inheritance or by legacy or by fideicommiss.
Ex duobus patronis unus, ex debita parte heres institutus sine condicione et dilatione, contra tabulas bonorum possessionem petere non poterit, licet, si minor ei portio esset relicta et contra tabulas bonorum possessionem petisset, alia etiam portio ei adcrescere potuisset.
Of two patrons, the one who, for the due share, has been instituted heir without condition and without deferment will not be able to seek possession of the goods against the tablets; although, if a smaller portion had been left to him and he had sought possession of the goods against the tablets, another portion also could have accrued to him.
Cum ex falsis codicillis, qui veri aliquo tempore crediti sunt, heres ignorans quasi ex fideicommisso libertatem servis praestitisset, rescriptum est a divo hadriano liberos quidem eos esse, sed aestimationem sui praestare debere: et hos libertos manumissoris esse recte probatur, quia salvum est etiam in his libertis ius patroni.
When, from false codicils which at some time were believed to be genuine, an heir, acting in ignorance, had bestowed liberty upon slaves as if from a fideicommissum, it was determined by rescript of the deified Hadrian that they are indeed free, but must provide the valuation of themselves; and it is rightly established that these are the manumitter’s freedmen, because the right of the patron is preserved even in the case of these freedmen.
Camelia pia ab hermogene appellaverat, quod diceret iudicem de dividenda hereditate inter se et coheredem non tantum res, sed etiam libertos divisisse: nullo enim iure id eum fecisse. placuit nullam esse libertorum divisionem: alimentorum autem divisionem a iudice inter coheredes factam eodem modo ratam esse.
Camelia Pia had appealed from Hermogenes, because she said that the judge, on the matter of dividing the inheritance between herself and a coheir, had divided not only the property, but also the freedmen; for he had done that by no right. It was decided that there is no division of freedmen; but that a division of maintenance made by the judge between coheirs is in the same way valid.
Honori parentium ac patronorum tribuendum est, ut, quamvis per procuratorem iudicium accipiant, nec actio de dolo aut iniuriarum in eos detur: licet enim verbis edicti non habeantur infames ita condemnati, re tamen ipsa et opinione hominum non effugiunt infamiae notam.
Honor is to be rendered to parents and patrons, such that, although they may receive judgment through a procurator, yet neither an action for fraud (dolus) nor for injuries (iniuriae) is granted against them: for although by the words of the edict those condemned in this way are not held infamous, yet in fact and in the opinion of men they do not escape the mark of infamy.
Titius puerum emit, quem post multos annos venire iussit: postea exoratus accepto ab eo pretio eum manumisit: quaero, an eum filius et heres manumissoris ut ingratum accusare possit. respondit posse, si nihil aliud esset impedimento: nam plurimum interesse, a suo servo quis vel etiam ab amico eius acceptis nummis dederit libertatem, an ab eo servo, qui cum esset alienus in fidem eius devenit. etenim ille etiamsi non gratuitum, beneficium tamen praestitit, iste nihil amplius quam operam suam accommodare videri potest.
Titius bought a boy, whom after many years he ordered to be sold; later, being prevailed upon, after receiving the price from him, he manumitted him. I ask whether the son and heir of the manumittor can accuse him as ungrateful. He answered that he can, if nothing else were an impediment: for it makes a very great difference whether someone has granted liberty to his own slave with money received from him, or even from his friend, or to that slave who, although he belonged to another, came into his trust. For the former, even if not gratuitous, nevertheless performed a beneficium; the latter can be seen to have done nothing more than lend his services.
Nec non et si ventris nomine in possessionem calumniae causa missa dicatur patrona, libertus hoc dicens non audietur, quia de calumnia patroni quaeri non debet. his enim personis etiam in ceteris partibus edicti honor habebitur.
And likewise, if a patroness is said to have been sent into possession in the name of the womb for the sake of calumny, a freedman saying this will not be heard, because one ought not to inquire into the calumny of a patron. For to these persons honor will be shown even in the other parts of the edict.