Justinian•DIGESTA
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Dig. 38.3.0. De libertis universitatium.
38.2.0. On the goods of freedmen.
Dig. 38.3.0. On the freedmen of corporate bodies.
Dig. 38.6.0. Si tabulae testamenti nullae extabunt, unde liberi.
38.5.0. If anything has been done to defraud the patron.
Dig. 38.6.0. If no tablets of a testament exist, whence the children.
Dig. 38.9.0. De successorio edicto.
38.8.0. Whence the cognates.
Dig. 38.9.0. On the successorial edict.
Dig. 38.12.0. De veteranorum et militum successione.
38.11.0. Whence the husband and wife.
Dig. 38.12.0. On the succession of veterans and soldiers.
Dig. 38.15.0. Quis ordo in possessionibus servetur.
38.14.0. That the grant of the estate be given in accordance with the laws or the decrees of the Senate.
Dig. 38.15.0. What order is to be observed in the grants of possession.
38.17.0. On the senatus consultum Tertullianum and Orphitianum.
Hoc edictum praetor proponit coartandae persecutionis libertatis causa impositorum: animadvertit enim rem istam libertatis causa impositorum praestationem ultra excrevisse, ut premeret atque oneraret libertinas personas.
The praetor publishes this edict for the purpose of constraining the enforcement of things imposed for the sake of liberty: for he has observed that this matter—the performance of obligations imposed for the sake of liberty—has grown beyond bounds, so as to press upon and burden freed persons (libertine persons).
A duobus manumissus utrique operas promiserat: altero ex his mortuo nihil est, quare non filio eius, quamvis superstite altero, operarum detur petitio. nec hoc quicquam commune habet cum hereditate aut bonorum possessione: perinde enim operae a libertis ac pecunia credita petitur. haec ita aristo scripsit, cuius sententiam puto veram: nam etiam praeteritarum operarum actionem dari heredi extraneo sine metu exceptionis placet.
Manumitted by two, he had promised services to each: one of these having died, there is no reason why a claim for services should not be granted to his son, although the other survives. Nor has this anything in common with inheritance or with bonorum possessio: for services are demanded from freedmen just as a loaned sum of money is demanded. Aristo wrote thus, whose opinion I deem true: for it is approved that even the action for past services be granted to a stranger heir without fear of an exceptio (defense).
Plane quaeritur, si quis liberto suo legaverit, si filio suo iuraverit se decem operarum nomine praestaturum, an obligetur iurando. et celsus iuventius obligari eum ait parvique referre, quam ob causam de operis libertus iuraverit: et ego celso adquiesco.
Clearly it is asked, if someone has bequeathed to his freedman, if he has sworn to his son that he will render under the title of ten services, whether he is obligated by the swearing. And celsus iuventius says that he is obligated, and that it matters little for what cause, concerning the services, the freedman swore: and I acquiesce in celsus.
Si quando duobus patronis iuraverit libertus operas se daturum, labeoni placet et deberi et peti posse partem operae, cum semper praeterita opera, quae iam dari non possit, petatur. quod contingit, si vel ipsis patronis iuretur vel promittatur vel communi eorum servo vel complures heredes uni patrono existant.
If at any time a freedman has sworn to two patrons that he will render services, Labeo holds that a part of the service is both owed and can be demanded, since it is always past service that is sued for, which now cannot be given. This happens if either the oath is sworn or a promise is made to the patrons themselves or to their common slave, or if several heirs exist for one patron.
Sed officiales quidem futurae nec cuiquam alii deberi possunt quam patrono, cum proprietas earum et in edentis persona et in eius cui eduntur constitit: fabriles autem aliaeve eius generis sunt, ut a quocumque cuicumque solvi possint. sane enim, si in artificio sint, iubente patrono et alii edi possunt.
But official services to be rendered in future cannot be owed to anyone other than the patron, since the proprietorship of them has been established both in the person of the one rendering them and in that of the one to whom they are rendered; the craftsmanly (fabrile) ones, however, and others of that kind are such that they can be discharged by anyone to anyone. Indeed, if they pertain to a craft, at the patron’s order they can also be furnished to another.
Sed nec cui bona addicta sunt ex constitutione divi marci libertatium conservandarum causa, poterit operas petere neque ab his, qui directas, neque ab his, qui fideicommissarias acceperunt, quamvis fideicommissarias libertates qui acceperunt, ipsius liberti efficiantur: non enim sic fiunt liberti, ut sunt proprii, quos nulla necessitate cogente manumisimus.
But neither will he to whom the goods have been adjudicated, by the constitution of the deified Marcus, for the sake of conserving liberties, be able to demand services, neither from those who received direct liberties nor from those who received fideicommissary liberties, although those who have received the fideicommissary liberties become his freedmen: for they do not thus become freedmen as are one’s own proper freedmen, whom we have manumitted with no necessity compelling.
Neque promitti neque solvi nec deberi nec peti pro parte poterit opera. ideo papinianus subicit: si non una, sed plures operae sint et plures heredes existant patrono qui operas stipulatus est, verum est obligationem operarum numero dividi. denique celsus libro duodecimo scribit, si communis libertus patronis duobus operas mille daturum se iuraverit aut communi eorum servo promiserit, quingenas potius deberi, quam singularum operarum dimidias.
Neither can service be promised nor paid nor owed nor demanded pro parte (for a part). Therefore Papinian adds: if not one, but several services (operae) exist, and several heirs for the patron who stipulated for services, it is true that the obligation of services is divided by number. Finally Celsus writes in book 12 that, if a common freedman has sworn that he will give a thousand services to two patrons, or has promised to their common slave, five hundred each are rather owed than halves of individual services.
Eius artificii, quod post manumissionem didicerit libertus, operas debebit praestare, si haec sint, quae quandoque honeste et sine periculo vitae praestantur, nec semper hae, quae manumissionis tempore praestari debuerunt. sed si turpes operas postea exercere coeperit, praestare debebit eas, quas manumissionis tempore praestabat.
He must render services of that craft which the freedman has learned after manumission, if these are such as are at times performed honorably and without peril to life, and not always those which ought to have been rendered at the time of manumission. But if thereafter he has begun to practice base services, he must render those which he was rendering at the time of manumission.
Ex provincia libertum romam venire debere ad reddendas operas proculus ait: sed qui dies interea cesserint, dum romam venit, patrono perire, dummodo patronus tamquam vir bonus et diligens pater familias romae moraretur vel in provinciam proficiscatur: ceterum si vagari per orbem terrarum velit, non esse iniungendam necessitatem liberto ubique eum sequi.
Proculus says that a freedman ought to come to Rome from the province to render services: but that the days which in the meantime elapse, while he is coming to Rome, are lost to the patron, provided that the patron, as a good man and diligent pater familias, either remains at Rome or sets out into the province; but if he wishes to wander through the world, the necessity is not to be enjoined upon the freedman to follow him everywhere.
Cum patronus operas stipulatus sit, tunc scilicet committitur stipulatio, cum poposcerit nec libertus praestiterit. nec interest, adiecta sint haec verba " cum poposcero" an non sint adiecta: aliud enim est de operis, aliud de ceteris rebus. cum enim operarum editio nihil aliud sit quam officii praestatio, absurdum est credere alio die deberi officium, quam quo is vellet, cui praestandum est.
When a patron has stipulated for services, then, to be sure, the stipulation is breached when he has demanded and the freedman has not furnished. Nor does it matter whether these words " when I shall demand" have been added or not: for the case is one thing with services, another with other matters. For since the rendering of services is nothing other than the performance of duty, it is absurd to believe that a duty is owed on a day other than the one on which he would wish, to whom it must be performed.
Cum libertus promiserit patrono operas se daturum neque adiecerit " liberisque eius", constat liberis eius ita demum deberi, si patri heredes extiterint. heredes tamen extitisse liberos parenti ita demum prodesse ad operarum petitionem iuliano placet, si non per alium heredes extiterunt. itaque si quis exheredato emancipato filio servum eius heredem instituerit et per eum servum heres extiterit filius, repelli eum ab operarum petitione debere, perinde ac repelleretur patronus, qui operas non imposuisset vel quas imposuit revendidisset.
When a freedman has promised his patron that he will render services and has not added “and to his children,” it is settled that they are owed to his children only if they have become heirs to their father. However, Julian holds that the children’s having become heirs to the parent profits them for the petition of services only if they did not become heirs through another. And so, if someone, with his son disinherited and emancipated, has instituted that son’s slave as heir and through that slave the son has become heir, he must be repelled from the petition for services, just as a patron would be repelled who had not imposed the services, or had resold those which he had imposed.
Hae operae, quas libertus promittit, multum distant a fabrilibus vel pictoriis operis. denique si libertus faber aut pictor fuerit, quamdiu id artificium exercebit, has operas patrono praestare cogitur. quare sicut fabriles operas quis potest sibi aut titio stipulari, ita patronus a liberto operas sibi aut sempronio recte stipulatur: et libertus obligatione solvetur, si tales operas extraneo dederit, quales patrono praestando liberaretur.
These services, which the freedman promises, differ greatly from fabrile or pictorial works. Indeed, if the freedman is a smith or a painter, so long as he exercises that craft, he is compelled to render these services to the patron. Wherefore, just as one can stipulate fabrile services to himself or to Titius, so the patron rightly stipulates from the freedman services to himself or to Sempronius; and the freedman will be released from the obligation if he has furnished to a third party such services as, by rendering to the patron, he would be released.
Si patroni plures consulto in diversas regiones discesserint et liberto simul operas indixerint, potest dici diem operarum cedere, sed libertum non obligari, quia non per eum, sed per patronos staret, quo minus operae dentur, sicut accidit, cum aegrotanti liberto operae indicuntur. quod si diversarum civitatium patroni sint et in sua quisque moretur, consentire debent in operis ab eo accipiendis: durum alioquin est eum, qui se liberare potest decem diebus operando, simul operis indictis, si in accipiendis non consentiant, compelli ad praestandam alteri quinque operarum aestimationem.
If several patrons have deliberately departed into diverse regions and at the same time have imposed services upon the freedman, it can be said that the day of services accrues, but the freedman is not bound, because it would not depend on him, but on the patrons, that the services are not rendered—just as happens when services are demanded of a freedman who is ill. But if the patrons are of different cities and each remains in his own, they ought to consent in receiving the works from him; otherwise it is harsh that he, who can free himself by working for ten days, when services are imposed simultaneously, if they do not consent in receiving them, be compelled to furnish to the other the assessment of five days of services.
Quotiens certa species operarum in stipulationem deducitur, veluti pictoriae fabriles, peti quidem non possunt nisi praeteritae, quia etsi non verbis, at re ipsa inest obligationi tractus temporis, sicuti cum ephesi dari stipulemur, dies continetur. et ideo inutilis est haec stipulatio: " operas tuas pictorias centum hodie dare spondes?" cedunt tamen operae ex die interpositae stipulationis. sed operae, quas patronus a liberto postulat, confestim non cedunt, quia id agi inter eos videtur, ne ante cederent quam indictae fuissent, scilicet quia ex commodo patroni libertus operas edere debet: quod in fabro vel pictore dici non convenit.
Whenever a definite kind of services is brought into a stipulation, such as painterly or smith’s, they indeed cannot be demanded except for those already past, because, although not by words, yet in the thing itself a tract of time is inherent in the obligation, just as when we stipulate that something be given at Ephesus, a day is implied. And therefore this stipulation is useless: "Do you promise to give one hundred of your painterly services today?" Nevertheless, services do accrue from the day inserted in the stipulation. But the services which a patron demands from a freedman do not accrue immediately, because it seems to be arranged between them that they should not accrue before they have been appointed, namely because the freedman ought to render services according to the convenience of the patron; which is not fitting to be said in the case of a smith or a painter.
Medicus libertus, quod putaret, si liberti sui medicinam non facerent, multo plures imperantes sibi habiturum, postulabat, ut sequerentur se neque opus facerent: id ius est nec ne? respondit ius esse, dummodo liberas operas ab eis exigeret, hoc est ut adquiescere eos meridiano tempore et valetudinis et honestatis suae rationem habere sineret.
A physician who was a freedman, because he thought that, if his own freedmen did not practice medicine, he would have many more giving orders to him, was petitioning that they follow him and not do work: is that lawful or not? He responded that it is lawful, provided that he exact free services from them, that is, that he allow them to take rest at the midday time and to have regard for their health and their respectability.
Item rogavi, si has operas liberti dare nollent, quanti oporteret aestimari. respondit, quantum ex illorum operis fructus, non quantum ex incommodo dando illis, si prohiberet eos medicinam facere, commodi patronus consecuturus esset.
Likewise I asked, if the freedmen were unwilling to give these services, at how much they ought to be appraised. He replied: at as much as is the profit from their work, not at as much advantage as the patron would secure from the inconvenience to them of giving them, if he were to forbid them to practice medicine.
Si libertus artem pantomimi exerceat, verum est debere eum non solum ipsi patrono, sed etiam amicorum ludis gratuitam operam praebere: sicut eum quoque libertum, qui medicinam exercet, verum est voluntate patroni curaturum gratis amicos eius. neque enim oportet patronum, ut operis liberti sui utatur, aut ludos semper facere aut aegrotare.
If a freedman practices the art of the pantomime, it is true that he ought to render gratuitous service not only to the patron himself, but also at the games of his friends; likewise it is true that a freedman who practices medicine, by the will of the patron, will treat his friends gratis. For it is not fitting that the patron, in order to make use of his freedman’s work, should either always be putting on shows or be sick.
Si operarum iudicio actum fuerit cum liberto et patronus decesserit, convenit translationem heredi extraneo non esse dandam: filio autem et si heres non extat et si lis contestata non fuerat, tamen omnimodo competit, nisi exheredatus sit.
If an action for services has been brought against a freedman and the patron has died, it is agreed that the translation (transfer) is not to be granted to an extraneous heir; to the son, however—even if he is not the heir and even if the suit had not been contested—nevertheless it in every way lies, unless he has been disinherited.
Si libertus ita iuraverit dare se, quot operas patronus arbitratus sit, non aliter ratum fore arbitrium patroni, quam si aequum arbitratus sit. et fere ea mens est personam arbitrio substituentium, ut, quia sperent eum recte arbitraturum, id faciant, non quia vel immodice obligari velint.
If a freedman has thus sworn that he will render as many services as the patron shall have adjudged, the patron’s arbitrament will be ratified only if he has adjudged it equitable. And generally such is the intention of those who appoint a person to an arbitrament: they do it because they hope he will arbitrate rightly, not because they wish to be bound immoderately.
Interdum et deminutionem et augmentum et mutationem recipere obligationes operarum sciendum est. nam dum languet libertus, patrono operae, quae iam cedere coeperunt, pereunt. sed si liberta, quae operas promisit, ad eam dignitatem perveniat, ut inconveniens sit praestare patrono operas, ipso iure hae intercident.
Sometimes it must be known that obligations of services admit diminution, augmentation, and mutation. For while the freedman is ailing, the services to the patron that had already begun to accrue are lost. But if a freedwoman who has promised services attains such dignity that it is unbecoming to render services to the patron, these lapse by operation of law.
" qui libertinus duos pluresve a se genitos natasve in sua potestate habebit praeter eum, qui artem ludicram fecerit quive operas suas ut cum bestiis pugnaret locaverit: ne quis eorum operas doni muneris aliudve quicquam libertatis causa patrono patronae liberisve eorum, de quibus iuraverit vel promiserit obligatusve erit, dare facere praestare debeto".
" a freedman who shall have two or more sons or daughters begotten by himself under his own power, except one who has practiced the theatrical art or has let out his services to fight with beasts: let none of them, on account of freedom, be bound to give, do, or furnish to the patron, patroness, or their children any services, a gift, a present, or anything else, with respect to which he may have sworn or promised or be under obligation."
Sed si creditori suo libertum patronus delegaverit, non potest idem dici: solutionis enim vicem continet haec delegatio. potest tamen dici, si in id, quod patrono promisit, alii postea delegatus sit, posse eum liberari ex hac lege: nam verum est patrono eum expromisisse, quamvis patrono nunc non debeat: quod si ab initio delegante patrono libertus promiserit, non liberari eum.
But if a patron has delegated his freedman to his own creditor, the same cannot be said: for this delegation holds the place of payment. Yet it can be said that, if afterwards he is delegated to another for that which he promised to the patron, he can be released under this law: for it is true that he has expromised to the patron, although he does not now owe the patron; but if from the beginning, with the patron delegating, the freedman promised, he is not released.
Hae demum impositae operae intelleguntur, quae sine turpitudine praestari possunt et sine periculo vitae. nec enim si meretrix manumissa fuerit, easdem operas patrono praestare debet, quamvis adhuc corpore quaestum faciat: nec harenarius manumissus tales operas, quia istae sine periculo vitae praestari non possunt.
These, then, are understood to be the services imposed which can be rendered without turpitude and without peril to life. For neither, if a prostitute has been manumitted, ought she render the same services to her patron, although she still makes profit by her body; nor a gladiator of the arena (harenarius) when manumitted such services, because these cannot be rendered without peril to life.
Si tamen libertus artificium exerceat, eius quoque operas patrono praestare debebit, etsi post manumissionem id didicerit. quod si artificium exercere desierit, tales operas edere debebit, quae non contra dignitatem eius fuerint, veluti ut cum patrono moretur, peregre proficiscatur, negotium eius exerceat.
If, however, a freedman practices a craft, he must also render his services to the patron, even if he learned it after manumission. But if he has ceased to practice a craft, he must render such services as would not be against his dignity, for example, that he stay with the patron, travel abroad, and manage his business.
Si ita stipulatio a patrono facta sit: " si decem dierum operas non dederis, viginti nummos dare spondes?" videndum est, an nec viginti actio danda sit, quasi onerandae libertatis gratia promissi sint, nec operarum, quae promissae non sint? an vero operae dumtaxat promissae fingi debeant, ne patronus omnimodo excludatur? et hoc praetor quoque sentit operas dumtaxat promissas.
If a stipulation has been made by the patron in this way: " if you do not render the services of ten days, do you promise to give twenty coins?" it must be considered whether neither an action for the twenty should be granted, as if they had been promised for the sake of burdening the freedom, nor for the services, which have not been promised; or indeed whether only the services ought to be deemed to have been promised, lest the patron be excluded altogether; and this the praetor also holds—that only the services were promised.
Sequens illa quaestio est, an libertus impetrare debeat, ne maioris summae quam viginti condemnetur, quia videtur quodammodo patronus tanti operas aestimasse ideoque non deberet egredi taxationem viginti. sed iniquum est nec oportet liberto hoc indulgere, quia non debet ex parte obligationem comprobare, ex parte tamquam de iniqua queri.
The following question is whether the freedman ought to obtain that he not be condemned to a sum greater than twenty, because the patron seems in a certain way to have appraised the services at that amount and therefore ought not to exceed the assessment of twenty. But it is inequitable, nor should this be indulged to the freedman, because he ought not on the one hand to confirm the obligation, and on the other hand to complain as though of an inequitable one.
Libertus, qui operarum obligatione dimissus est atque ita liberam testamenti factionem adsecutus est, nihilo minus obsequi verecundiae tenetur. alimentorum diversa causa est, cum inopia patroni per invidiam libertum convenit.
A freedman who has been dismissed from the obligation of services and has thereby obtained free testamentary capacity is nonetheless bound to comply with deference. The case is different with respect to maintenance, when the patron’s indigence, by reason of public ill-will, brings action against the freedman.
Campanus scribit non debere praetorem pati donum munus operas imponi ei, qui ex fideicommissi causa manumittatur. sed si, cum sciret posse se id recusare, obligari se passus sit, non inhibendam operarum petitionem, quia donasse videtur.
Campanus writes that the praetor ought not to allow a gift, a munus, or services to be imposed upon one who is manumitted by reason of a fideicommissum. But if, when he knew that he could refuse it, he allowed himself to be obligated, the demand for services (operae) is not to be inhibited, because he appears to have made a gift.
Duorum libertus potest aliquo casu singulis diversas operas uno tempore in solidum edere, veluti si librarius sit et alii patrono librorum scribendorum operas edat, alter vero peregre cum suis proficiscens operas custodiae domus ei indixerit: nihil enim vetat, dum custodit domum, libros scribere. hoc ita neratius libris membranarum scripsit.
A freedman of two (patrons) can in some case render to each different services at the same time in full, for example if he is a copyist and to one patron he renders services of writing books, but the other, setting out abroad with his own, has imposed upon him the services of guarding his house: for nothing prevents him, while he is guarding the house, from writing books. Neratius wrote thus in his Books of Parchments.
Hoc edictum a praetore propositum est honoris, quem liberti patronis habere debent, moderandi gratia. namque ut servius scribit, antea soliti fuerunt a libertis durissimas res exigere, scilicet ad remunerandum tam grande beneficium, quod in libertos confertur, cum ex servitute ad civitatem romanam perducuntur.
This edict was posted by the praetor for the sake of moderating the honor which freedmen ought to have toward their patrons. For, as Servius writes, formerly they were accustomed to exact from freedmen the harshest things, namely, to remunerate so great a benefaction as is conferred upon freedmen, when they are led from servitude to Roman citizenship.
Et quidem primus praetor rutilius edixit se amplius non daturum patrono quam operarum et societatis actionem, videlicet si hoc pepigisset, ut, nisi ei obsequium praestaret libertus, in societatem admitteretur patronus.
And indeed, the first was the praetor Rutilius, who edicted that he would grant to the patron nothing more than the action for services and for partnership, namely if he had stipulated this: that, unless the freedman rendered him obsequium (dutiful obedience), the patron should be admitted into the partnership.
Si patronus a liberto praeteritus bonorum possessionem petere potuerit contra tabulas et antequam peteret decesserit vel dies ei bonorum possessionis agnoscendae praeterierit, liberi eius vel alterius patroni petere poterunt ex illa parte edicti, qua, primis non petentibus aut etiam nolentibus ad se pertinere, sequentibus datur, atque si priores ex eo numero non essent.
If a patron, having been passed over by his freedman, could have petitioned for possession of the estate against the will, and before he petitioned he died, or the day for him to acknowledge the possession of the estate has passed, his children or the children of another patron will be able to petition under that part of the edict by which, when the first in order do not petition, or even are unwilling that it pertains to them, it is granted to those following, as if the former were not of that number.
Sed si patronus heres institutus vivo liberto decessisset superstitibus liberis, quaesitum est, an illi contra tabulas testamenti bonorum possessionem petere possint: et eo decursum est, ut mortis tempus, quo defertur bonorum possessio, spectari debeat, an patronus non sit, ut, si sit, ex prima parte edicti liberi eius bonorum possessionem petere non possint.
But if a patron, instituted as heir, had died while the freedman was still alive, with children surviving, the question has been raised whether they can seek bonorum possessio against the tablets of the testament; and the conclusion has been reached that the time of death, at which bonorum possessio is delated, must be looked to, whether he is a patron or not, so that, if he is, his children cannot seek bonorum possessio from the first part of the Edict.
Si filius emancipatus nepotem in potestate avi reliquisset, bonorum possessionem partis dimidiae dandam ei filio intestati liberti, quamvis iure ipso legitima hereditas ad nepotem pertineat, quia et contra tabulas eius liberti filio potius bonorum possessio partis debitae daretur.
If a son who has been emancipated had left a grandson in the power of the grandfather, the bonorum possessio of a half share should be given to that son, the son of the intestate freedman, although by the law itself the legitimate inheritance pertains to the grandson, because even against the tablets (will) of that freedman the bonorum possessio of the owed share would rather be given to the son.
Si capitis libertum accusaverit is, cui adsignatus est, non potest is petere contra tabulas bonorum possessionem fratribusque suis non obstabit: sed hi contra tabulas bonorum possessionem petent, quemadmodum peterent, si ex altero filio nepotes essent: libertus enim, qui alteri ex filiis adsignatur, non desinit alterius filii libertus esse. amplius dicendum est: etiamsi omiserit frater bonorum possessionem, alter frater, cui adsignatus non est, potest succedere et contra tabulas bonorum possessionem petere.
If the one to whom the freedman has been assigned brings a capital charge against the freedman, he cannot seek the possession of the goods against the tablets, nor will he be an obstacle to his brothers: but these will seek the possession of the goods against the tablets, just as they would seek it if there were grandsons from the other son; for a freedman who is assigned to one of the sons does not cease to be the freedman of the other son. Further, it must be said: even if the brother has omitted the possession of the goods, the other brother, to whom he is not assigned, can succeed and seek the possession of the goods against the tablets.
Quid ergo, si mortis tempore pependit, extitit tamen, antequam patrono deferatur bonorum possessio, hoc est ante aditam hereditatem, an invitetur ex hac parte edicti? et magis est, ut aditae hereditatis tempus spectetur: hoc enim iure utimur.
What then, if at the time of death it was pending, yet it came into being before the bonorum possessio is tendered to the patron, that is, before the inheritance is entered upon—is it to be invited under this part of the edict? And the sounder view is that the time of the inheritance having been entered upon is to be regarded; for we employ this law.
Sed et si non mortis causa donavit libertus patrono, contemplatione tamen debitae portionis donata sunt, idem erit dicendum: tunc enim vel quasi mortis causa imputabuntur vel quasi adgnita repellent patronum a contra tabulas bonorum possessione.
But even if the freedman did not donate to the patron mortis causa, yet if the things were donated in contemplation of the portion owed, the same must be said: for then they will either be imputed as if mortis causa, or, as if acknowledged toward it, they will repel the patron from the grant of possession of the estate against the will.
Si deportatus patronus sit, filio eius competit bonorum possessio in bonis liberti nec impedimento est ei talis patronus, qui mortui loco habetur. et dissimile est, si patronus apud hostes sit: nam propter spem postliminii obstat liberis suis.
If the patron has been deported, his son is entitled to the grant of bonorum possessio in the estate of the freedman, and such a patron, who is regarded as in the place of one dead, is no impediment to him. And it is otherwise if the patron is among the enemy: for, because of the hope of postliminy, he stands as an obstacle to his own children.
Libertinus, qui patronum patronique liberos habet, si patronum ex parte debita heredem instituit, liberos eius in eandem portionem substituere debet, ut, licet patronus vivo liberto mortuus fuerit, satisfactum videatur liberis eius.
A freedman, who has a patron and the patron’s children, if he institutes the patron as heir for the due portion, ought to substitute his children into the same portion, so that, although the patron may have died while the freedman is alive, it may seem that satisfaction has been made to his children.
Etsi ex modica parte instituti sint liberi liberti, bonorum possessionem contra tabulas patronus petere non potest: nam et Marcellus libro nono digestorum scripsit quantulacumque ex parte heredem institutum liberti filium patronum expellere.
Even if the children of a freedman have been instituted as heirs from a modest share, the patron cannot seek bonorum possession against the will: for Marcellus also wrote in the ninth book of the Digesta that, from whatever share whatsoever, the son of the freedman instituted as heir expels the patron.
Cum patroni filia heres instituta esset a liberto falsumque testamentum dictum esset, in quo scripta erat, et appellatione interposita et pendente diem suum obisset: heredibus eius divus marcus subvenit, ut id haberent, quod haberet patroni filia, si viveret.
When the patron’s daughter had been instituted heir by a freedman, and it had been alleged that the testament was forged, in which she had been written, and, an appeal having been lodged and still pending, she departed this life: the deified Marcus came to the aid of her heirs, so that they should have what the patron’s daughter would have, if she were living.
Si vero non habuit effectum petitio eius, dico non impediri, quo minus adiuvetur. quin immo et si sic adit quasi ex debita portione institutus, mox apparuit eum minorem partem quam speravit accepisse, aequissimum est admitti eum ad suum auxilium. sed et si testato convenisset heredem, ut sibi legatum solveretur, mox paenituisset, puto eum posse adiuvari.
But if his petition did not have effect, I say he is not impeded from being aided. Nay rather, even if he thus enters upon the inheritance as though instituted from a due portion, and soon it appeared that he received a smaller part than he expected, it is most equitable that he be admitted to his own remedy. But also, if, in a testate case, he had sued the heir that a legacy be paid to him, and soon afterward regretted it, I think he can be helped.
Sed et si mortis causa donationem adgnoverit, dicendum est repelli eum a contra tabulas bonorum possessione, sic tamen, si post mortem liberti adgnovit. ceterum si ei vivus libertus donavit, ille accepit, non idcirco erit repulsus a contra tabulas bonorum possessione, quia potest dicere sperasse quod in testamento quoque gratus circa eum fieret, remittique ei debet ab eis decedere vel ea compensare in portionem pro rata.
But also, if he has acknowledged a mortis causa donation, it must be said that he is repelled from the bonorum possessio contra tabulas—however, only if he acknowledged it after the death of the freedman. But if, while alive, the freedman made a gift to him and he accepted it, he will not for that reason be repelled from the bonorum possessio contra tabulas, because he can say that he hoped that in the testament as well favor would be shown toward him; and it ought to be remitted to him either to give those things up or to compensate them in his portion pro rata.
Si ex patronis alicui satisfactum non erit ita, ut alii amplius sua portione ex bonis liberti relinquatur: ei, cui satisfactum non erit, ita actio dabitur, ut eius portio suppleatur ex eo, quod extraneo heredi et quod patrono supra suam portionem relictum est. eadem ratio et in pluribus patronis servabitur.
If among the patrons someone shall not have been satisfied in such a way that to another there is left more than his own portion from the goods of the freedman: to him who shall not have been satisfied, an action will be given in such a way that his portion is made up from that which has been left to an outside heir and from that which has been left to a patron above his own portion. The same rule will be observed also in the case of several patrons.
Iulianus ait eum, qui ab avo suo exheredatus est, a bonis libertorum eius summoveri, a patris vero sui libertorum bonis non excludi: quod si a patre sit exheredatus, ab avo non sit, non solum a libertorum paternorum bonis, verum etiam ab avi quoque excludi debere, quia per patrem avitos libertos consequitur: quod si pater eius sit ab avo exheredatus, ipse non sit, posse nepotem avitorum libertorum contra tabulas bonorum possessionem petere. idem ait, si pater me exheredavit, avus meus patrem meum et prior avus decesserit, ab utriusque libertis me repelli: sed si ante pater decessisset, postea avus, dicendum erit nihil mihi nocere patris exheredationem ad avitorum libertorum bona.
Julianus says that he who has been disinherited by his grandfather is to be removed from the goods of that grandfather’s freedmen, but is not excluded from the goods of his own father’s freedmen. But if he has been disinherited by his father, and not by his grandfather, he ought to be excluded not only from the goods of the father’s freedmen but also from those of the grandfather as well, because he attains the grandfather’s freedmen through his father. But if his father has been disinherited by the grandfather, he himself not, the grandson can seek possession of the estate against the will (bonorum possessio contra tabulas) of the grandfather’s freedmen. The same author says: if my father disinherited me, my grandfather disinherited my father, and the grandfather died first, I am to be repelled from the freedmen of both; but if the father had died first and afterwards the grandfather, it must be said that my father’s disinheritance does me no harm with respect to the goods of the grandfather’s freedmen.
Quod si pater meus a patre suo sit exheredatus, ego neque a patre meo neque ab avo, mortuo quidem patre et adversus avitos et adversus paternos libertos ius habebo, vivente patre, quamdiu in potestate eius ero, non petam contra tabulas avitorum libertorum bonorum possessionem, emancipatus non summovebor.
But if my father has been disinherited by his own father, then—with my father dead—I shall have a right both against my grandfather’s freedmen and against my father’s freedmen; while my father is alive, so long as I am in his power, I shall not seek possession of goods against the tablets of my grandfather’s freedmen; once emancipated I shall not be excluded.
Si quis non mala mente parentis exheredatus sit, sed alia ex causa, exheredatio ipsi non nocet: ut puta pone furoris causa exheredatum eum vel ideo, quia impubes erat, heredemque institutum rogatum ei restituere hereditatem.
If someone has been disinherited not by the parent’s bad mind, but for another cause, the exheredation does not harm him: as, for instance, suppose he was disinherited on account of madness, or for this reason, that he was underage, and the instituted heir was requested to restore the inheritance to him.
Ex testamento autem, ex quo neque adita hereditas est neque petita bonorum possessio, liberis exheredatio non nocet: absurdum est enim in hoc tantum valere testamentum, ut exheredatio vigeat, cum alias non valeat.
But from a testament, from which neither the inheritance has been entered upon nor possession of the goods has been sought, exheredation does not harm the children: for it is absurd that the testament should avail only to this extent—that the exheredation be effective—when otherwise it is not valid.
Si patroni filius priore gradu sit heres scriptus, secundo exheredatus, huic non nocet exheredatio, cum voluntate patris vel extiterit heres vel existere potuerit: neque enim debet videri pater indignum existimasse filium bonis libertorum, quem ad hereditatem suam primum vocaverit. ac ne eum quidem existimandum est summoveri a bonis liberti, qui a primo gradu exheredatus et idem substitutus est. ergo is, qui institutus sit heres vel primo gradu vel sequenti vel alio quo gradu, licet exheres sit eodem testamento, non est summovendus a liberti bonis.
If the patron’s son is written as heir in the first degree, and in the second is exheredated, this exheredation does not harm him, since by his father’s will he either has been heir or could have been heir; for the father ought not to be seen to have judged his son unworthy of the goods of the freedmen, whom he called first to his own inheritance. And neither is he to be thought removed from a freedman’s goods who has been exheredated from the first degree and is likewise substituted. Therefore he who has been instituted heir either in the first degree or in the next or in any other degree, although he be exheres in the same testament, is not to be removed from the freedman’s goods.
Filius patroni exheredatus, quamvis nepos ex eo heres scriptus fuerit, bonorum possessionem contra tabulas paternorum libertorum accipere non potest: licet enim necessarius existat patri suo, non per semetipsum, sed per alium ad hereditatem admittitur. et certe constat: si emancipatus filius exheredatus fuerit et servus eius heres scriptus, etsi iusserit servo hereditatem adire et ita patri suo heres extiterit, non habebit contra tabulas paternorum libertorum bonorum possessionem.
The son of a patron who has been disinherited, although a grandson from him has been appointed heir, cannot receive possession of the goods “against the will” of his father’s freedmen: for although he stands as a necessary heir to his father, he is admitted to the inheritance not by himself, but through another. And certainly it is agreed: if an emancipated son has been disinherited and his slave has been appointed heir, even if he orders the slave to enter upon the inheritance and thus becomes heir to his father, he will not have possession of the goods against the will of his father’s freedmen.
Sed si minor quidem instituerit accusationem, maior autem factus sententiam acceperit, benigne erit dicendum ignosci ei debere, quia minor coepit. neque enim imputare ei possumus, cur non deseruit accusationem vel cur abolitionem non petierit, cum, alterum si fecisset, in turpillianum incideret, alterum non facile impetretur. certe si abolitione publice data repetit iamiam maior, dicendum est hunc esse removendum: maior enim factus potuit sine timore deserere abolitam accusationem.
But if indeed a minor has instituted an accusation, and, having become of full age, has received a sentence, it will be said indulgently that he ought to be pardoned, because he began as a minor. For we cannot impute to him why he did not desert the accusation or why he did not petition for abolition, since, if he had done the one, he would fall under the Turpillian statute, and the other is not easily obtained. Certainly, if, abolition having been publicly granted, he, now already of full age, repeats it, it must be said that he is to be removed: for, having become of full age, he could without fear desert an accusation that had been abolished.
Si libertus maiestatis patroni filium accusavit et patroni filius calumniae eum capitis puniri desideravit, non debet repelli hoc edicto. idem puto et si ab eo petitus retorsit in eum crimina: ignoscendum enim est ei, si voluit se ulcisci provocatus.
If a freedman has accused the patron’s son of treason, and the patron’s son has desired that he be punished capitally for calumny, he ought not to be repelled by this edict. I think the same also if, when sued by him, he retaliated by turning the charges back upon him: for pardon is to be granted to him, if, provoked, he wished to avenge himself.
Si patris mortem defendere necesse habuerit, an dicendum sit hic quoque ei succurrendum, si libertum paternum propter hoc accusavit, medicum forte patris aut cubicularium aut quem alium, qui circa patrem fuerat? et puto succurrendum, si affectione et periculo paternae substantiae ducente necesse habuit accusationem vel calumniosam instituere.
If he has had it necessary to vindicate his father's death, should it be said that here too he must be given succor, if for this reason he has accused a paternal freedman—perhaps his father's physician or chamberlain, or some other who had been about his father? And I think succor should be given, if, affection and the peril of the paternal estate leading, he had necessity to institute an accusation, even a calumnious one.
Accusasse autem eum dicimus, qui crimina obiecit et causam perorari usque ad sententiam effecit: ceterum si ante quievit, non accusavit: et hoc iure utimur. sed si appellatione interposita desiit, benigne dicetur non pertulisse accusationem. si igitur pendente appellatione decessit libertus, patroni filius admittetur ad bonorum possessionem, quia sententiae libertus morte subtractus est.
We say that he has “accused” who has alleged crimes and brought it about that the case be fully pleaded through to the judgment; but if he ceased earlier, he did not accuse: and we employ this rule. But if, with an appeal interposed, he desisted, it will be said indulgently that he did not carry the accusation through. Therefore, if while the appeal is pending the freedman died, the patron’s son will be admitted to possession of the goods, because the freedman was withdrawn from the judgment by death.
Si quis bonorum possessionem contra tabulas liberti acceperit, ab omni liberti iudicio repellitur, nec tantum si ipsi liberto heres fuerit scriptus, verum etiam si impuberi filio substitutus. nam et iulianus scripsit, si post petitam bonorum possessionem adierit impuberis filii liberti hereditatem patronus, denegari ei debere actiones.
If anyone has accepted possession of the goods against the tablets of a freedman, he is repelled from every suit concerning the freedman, and not only if he has been written heir to the freedman himself, but even if he has been substituted to his underage son. For Julian also wrote that, if after the possession of the goods has been sought the patron enters upon the inheritance of the freedman’s underage son, the actions ought to be denied to him.
Si patronus ex minore parte quam legitima heres institutus falsum testamentum dixisset nec optinuisset, non est ambiguum contra tabulas ei non deferri bonorum possessionem, eo quod facto suo perdidit hereditatem, cum temere falsum dixit.
If a patron, instituted as heir for a share less than the legitimate portion, had said the testament was false and did not prevail, there is no doubt that possession of the estate contrary to the will is not conferred upon him, for by his own act he lost the inheritance, since he rashly alleged falsity.
Si libertinus filium emancipatum sub condicione heredem instituerit et deficiente condicione substitutus adierit, quaero, utrum patrono adversus substitutum in partem debitam praetor an emancipato filio in totam hereditatem succurrere debeat. respondi, cum pater filium sub condicione primo gradu heredem instituit, si deficiente condicione, sub qua filius heres institutus est, ad secundum gradum hereditas pertinet vel adhuc pendente condicione filius decesserit, patrono partis debitae bonorum possessionem adversus substitutum competere. idemque est et si filius vel non petierit bonorum possessionem tempore exclusus vel repudiaverit.
If a freedman has instituted his emancipated son as heir under a condition, and, the condition having failed, the substitute has entered, I ask whether the praetor ought to assist the patron against the substitute for the due share, or the emancipated son for the whole inheritance. I answered: since the father in the first degree instituted the son as heir under a condition, if, the condition under which the son was instituted heir having failed, the inheritance pertains to the second degree, or if the son died while the condition was still pending, the patron is entitled to bonorum possessio of the due share against the substitute. And the same is the case also if the son either did not seek bonorum possessio and was excluded by lapse of time, or repudiated it.
but if, the condition failing, the inheritance should pertain to the son, the praetor will rather protect the emancipated son against the substitute. I consider, moreover, that whenever a son is written heir under a condition, sometimes a disinheritance by the substitutes is necessary, sometimes superfluous: for if it be that kind of condition which was in the son's power, as " cum testamentum fecerit", I think that even with the condition omitted the son makes room for the substitutes; but if the condition was not in the son's power, as " si titius consul factus fuerit", then the substitute is not admitted, unless the son has been disinherited by him by name.
Si libertus filium emancipatum heredem instituerit eiusque fidei commiserit, ut totam hereditatem sempronio restitueret, et filius, cum suspectam sibi hereditatem diceret, iussu praetoris adierit eam et sempronio restituerit: non inique patrono bonorum possessio partis debitae dabitur, perinde ac si non filius, sed is cui hereditas restituta est liberto heres exstitisset.
If a freedman has instituted his emancipated son as heir and has entrusted to his good faith that he restore the whole inheritance to Sempronius, and the son, since he declared the inheritance suspect to himself, has entered upon it by order of the praetor and has restored it to Sempronius: it will not be inequitable that possession of the estate for the due share be given to the patron, just as if not the son, but the one to whom the inheritance was restored, had become the freedman’s heir.
Si filius familias miles manumittat, secundum iuliani quidem sententiam, quam libro vicensimo septimo digestorum probat, patris libertum faciet: sed quamdiu, inquit, vivit, praefertur filius in bona eius patri. sed divus hadrianus flavio apro rescripsit suum libertum eum facere, non patris.
If a filius familias who is a soldier manumits, then, according to the opinion of Julianus, which he approves in the twenty-seventh book of the Digest, he will make the father’s freedman; but, he says, so long as he lives, the son is preferred to the father in his goods. But the deified Hadrian, in a rescript to Flavius Aper, wrote that he makes him his own freedman, not his father’s.
Si libertus praeterito patrono extraneum instituerit heredem et patronus, antequam contra tabulas bonorum possessionem petierit, in adoptionem se dederit, deinde scriptus omiserit hereditatem: patronus totorum bonorum liberti possessionem ut legitimus petere potest.
If a freedman, with his patron passed over, has instituted an outsider as heir, and the patron, before he has sought possession of the goods against the tablets (will), has given himself in adoption, then, though named, has omitted the inheritance: the patron can seek possession of all the goods of the freedman as a legal heir.
Liberto octoginta habenti fundus quadraginta legatus est: is die cedente legati decessit extraneo herede instituto. respondit posse patronum partem debitam vindicare: nam videri defunctum mortis tempore ampliorem habuisse rem centum, cum hereditas eius propter computationem legati pluris venire possit. neque referre, heres institutus repudiet legatum liberto relictum nec ne: nam et si de lege falcidia quaeratur, tale legatum quamvis repudiatum in quadrantem hereditatis imputatur legatariis.
To a freedman who had eighty, a farm of forty was bequeathed: when the day for the legacy had accrued, he died, a stranger having been instituted as heir. He answered that the patron could vindicate the due share: for the deceased is considered, at the time of death, to have had assets more ample to the amount of one hundred, since his inheritance, on account of the computation of the legacy, can fetch a higher value. Nor does it matter whether the instituted heir repudiates the legacy left to the freedman or not: for even if inquiry is made under the Lex Falcidia, such a legacy, although repudiated, is imputed into the quarter of the inheritance against the legatees.
Si in libertinum animadversum erit, patronis eius ius, quod in bonis eius habituri essent, si is in quem animadversum est sua morte decessisset, eripiendum non est. sed reliquam partem bonorum, quae ad manumissorem iure civili non pertineat, fisco esse vindicandam placet.
If punishment shall have been inflicted upon a freedman, the right of his patrons, which they would have in his goods if the person upon whom punishment has been inflicted had died a natural death, is not to be taken away. But it is decided that the remaining part of the goods, which does not pertain to the manumitter by civil law, is to be claimed by the fisc.
Patrono libertus fundum, quem ab eo alienum emerat, legavit et constituit patronus ad se pertinere legatum: contra tabulas bonorum possessionem accipere non potest, etsi nihil profecit ei legatum, quia alienam rem legaverit ei libertus, quia patronus ipse eum liberto vendiderat.
A freedman bequeathed to his patron a farm, which he had bought from him as an alien thing, and the patron declared that the legacy pertained to himself: he cannot receive bonorum possession contrary to the tablets, although the legacy has profited him nothing, because the freedman bequeathed to him another’s thing, since the patron himself had sold it to the freedman.
Si patronus non aluerit libertum, lex aelia sentia adimit eius libertatis causa imposita tam ei, quam ipsi ad quem ea res pertinet, item hereditatem ipsi et liberis eius, nisi heres institutus sit, et bonorum possessionem praeterquam secundum tabulas.
If the patron has not maintained the freedman, the Lex Aelia Sentia takes away the things imposed on account of his liberty, both from him and from the very person to whom that matter pertains; likewise the inheritance for him and his children, unless he has been instituted heir, and the possession of the goods except according to the tablets.
Si libertus, cum duos patronos haberet, alterum praeteriit, alterum ex semisse fecit heredem et alteri extraneo semissem dereliquit, scriptus quidem patronus debitam sibi partem immunem habet: de cetera autem parte patroni, quae supra debitum ei relicta est, et de semisse extraneo relicto alteri patrono pro rata portione satisfieri oportet.
If a freedman, when he had two patrons, passed over one, made the other heir as to a half, and left a half to another, a stranger, the patron who is named indeed holds his due share immune; but from the remaining portion of the patron which was left to him beyond what is due, and from the half left to the stranger, it is proper that satisfaction be made to the other patron in a pro rata portion.
A liberto suo herede seius usum fructum fundi maevio legavit: is libertus maevio herede relicto decessit: quaero, cum contra tabulas testamenti petierit filius seii adversus maevium, utrum deducto usu fructu pars debita ei fundi restituenda sit an solida, quia eorum bonorum acceperit possessionem, quae liberti cum moreretur fuerunt. respondit: usum fructum in causam pristinam restituendum puto. optimum itaque erit arbitrum postulare, ut arbitrio eius usus fructus in integrum restituatur.
From his freedman as heir, Seius bequeathed the usufruct of the farm to Maevio; that freedman died, leaving Maevio as heir. I ask, when the son of Seius has brought the action contra tabulas of the testament against Maevio, whether, with the usufruct deducted, the due share of the farm should be restored to him, or the entire, because he has taken bonorum possessio of those goods which were the freedman’s when he died. He answered: I think the usufruct must be restored to its former condition. Therefore it will be best to request an arbiter, so that by his arbitration the usufruct may be restored in integrum.
Libertus, qui solvendo non erat, praeterito patrono extrarios relinquit heredes: quaero, an possit patronus petere contra tabulas bonorum possessionem. respondit: cum a scriptis heredibus adita est hereditas, patronus contra tabulas bonorum possessionem petere potest, quia solvendo hereditas est, quae inveniat heredem. et sane absurdum est ius patroni in petenda bonorum possessione contra tabulas aliorum computatione, non iudicio ipsius patroni aestimari auferrique patrono, quod modicum vindicaturus est.
A freedman, who was not solvent, with the patron passed over, leaves strangers as heirs: I ask whether the patron can seek bonorum possessio against the tablets. He answered: when the inheritance has been entered upon by the written (instituted) heirs, the patron can seek bonorum possessio against the tablets, because an inheritance is solvent which finds an heir. And indeed it is absurd that the patron’s right in seeking bonorum possessio against the tablets be assessed by the computation of others, not by the judgment of the patron himself, and that there be taken away from the patron what little he is going to vindicate.
for many cases can intervene in which it is expedient for the patron to seek bonorum possessio, although the magnitude of the alien money (debt) which the freedman has left exceeds the resources of his patrimony; for example, if there are some estates among the goods of the freedman in which are the sepulchers of the patron’s ancestors, and the patron estimates that by bonorum possessio the rights pertaining to that part belong to him; or some mancipium (slave), which ought to be valued not by price but by affection. therefore he ought not on that account to have any less a right of seeking bonorum possessio, he who evaluates the freedman’s goods by his own disposition rather than by others’ computation, since by that very fact the patrimony may seem sufficient, that it both has an heir and a bonorum possessor.
Iulianus ait, si patronus libertatis causa imposita libertae revendiderit, filium eius a bonorum possessione summoveri, scilicet quia nec contra tabulas testamenti liberti bonorum possessionem accipiat, quotiens pater eius donum munus operas liberto revendiderit. plane si patroni filius libertatis causa imposita revendiderit, nihilo minus familiam bonorum possessionem contra tabulas liberti accipere ait, quia filius revendendo libertatis causa imposita fratrem suum non summovet.
Julianus says that, if the patron, with the cause of liberty imposed, has re‑sold to his freedwoman, his son is removed from the possession of the goods, namely because he does not even receive the possession of the goods against the testament of the freedman, whenever his father has re‑sold a gift, a present, or the services to the freedman. Plainly, if the patron’s son has re‑sold with the cause of liberty imposed, nonetheless he says that the family receives the possession of the goods against the testament of the freedman, because the son, by re‑selling with the cause of liberty imposed, does not remove his brother.
Si libertus heredem scripserit isque prius, quam de familia quaestionem haberet, adierit hereditatem, patronum ad contra tabulas bonorum possessionem non admitti iulianus ait: debuit enim et patronus liberti necem vindicare. quod et in patrona erit dicendum.
If a freedman has appointed an heir, and that person, before he had held an inquest concerning the household, has entered upon the inheritance, Julian says that the patron is not to be admitted to bonorum possessio against the tablets; for the patron too ought to vindicate the slaying of the freedman. The same is to be said in the case of a patroness.
Quaeritur, an filio exheredato etiam nepotes ex eo a bonorum possessione liberti excludantur. quod utique sic dirimendum est, ut vivo filio, donec in potestate eius liberi manent, non admittantur ad bonorum possessionem, ne qui suo nomine a bonorum possessione summoventur per alios eam consequantur, sin autem emancipati a patre fuerint vel alio modo sui iuris effecti, sine aliquo impedimento ad bonorum possessionem admittantur.
It is asked whether, when a son has been disinherited, the grandsons from him are likewise excluded from the possession of the goods of the freedman. This is certainly to be resolved thus: while the son is alive, so long as his children remain in his power, they are not admitted to the possession of the goods, lest those who are removed from the possession of the goods in their own name obtain it through others; but if they have been emancipated from their father or otherwise made sui iuris, they are admitted to the possession of the goods without any impediment.
Si libertus patrono, quod ad debitam portionem attinet, satisfaciat, invito tamen aliquid extorquere conetur, quid statuendum est, quaeritur. quid enim, si ex parte debita instituto decem praeterea legentur et rogetur servum proprium, qui sit decem vel minoris pretii, manumittere? iniquum est et legatum velle percipere et libertatem servo non dare: sed parte debita accepta et legato temperare et libertatem imponere non cogi, ne servum ( forte de se male meritum) cogatur manumittere.
If the freedman, as regards the due portion, satisfies the patron, yet tries to extort something from him against his will, the question is what should be determined. For what if, in addition to the due portion, ten are bequeathed to the instituted heir, and he is asked to manumit his own slave, who is worth ten or of lesser price? It is inequitable both to wish to take the legacy and not to give freedom to the slave; but, once the due portion has been accepted, he is not to be compelled both to temper the legacy and to impose freedom, lest he be forced to manumit a slave (perhaps one who has ill deserved of him).
What, then, if the same person has been appointed as sole heir and that same freedman should make the demand? If he will have a substitute, the remedy of the decree can proceed likewise, so that, the due portion having been received, the remaining part may come to the substitute, in such a way that, if perchance the slave could have been redeemed, liberty would be furnished. But with the substitution absent, the praetor, who takes cognizance concerning the fideicommissum, should compel the patron, as he embraces the freedman’s inheritance, to impose liberty upon the slave.
Filius, qui patri heres exstitit, fratrem exheredatum adrogavit atque ita herede eo relicto defunctus est: bonorum possessionem libertum patris naturalis exheredatus non habebit: nam cui non exheredato talis adoptio noceret, nocere debet exheredato, quoniam poena, quae legibus aut edicto irrogaretur, adoptionis remedio non obliteraretur. paulus notat: ei, qui alio iure venit quam eo, quod amisit, non nocet id quod perdidit, sed prodest quod habet: sic dictum est patrono eodemque patronae filio non obesse, quod quasi patronus deliquit, si ut patronae filius venire possit. papinianus.
A son, who stood as heir to his father, arrogated his disinherited brother and thus, with him left as heir, died: the disinherited freedman of the natural father will not have possession of the estate: for an adoption of this kind, which would not harm one not disinherited, ought to harm one disinherited, since the penalty which would be imposed by laws or by the edict would not be obliterated by the remedy of adoption. paulus notes: to one who comes under a different right than that which he lost, that which he lost does not harm, but what he has profits: thus it has been said that it does not prejudice a patron, and likewise the son of a patroness, that he offended, as it were, in the capacity of a patron, if he can come in the capacity of the patroness’s son. papinianus.
Castrensium bonorum titium libertus fecit heredem, ceterorum alium: adita est a titio hereditas: magis nobis placebat nondum patronum possessionem contra tabulas petere posse. verum illa quaestio intervenit, an omittente eo qui reliqua bona accepit perinde titio adcrescant, ac si partes eiusdem hereditatis accepissent. verius mihi videtur intestati iure deferri bona cetera.
The freedman made Titius heir of the military goods, another of the rest: the inheritance was entered upon by Titius: it more pleased us that the patron could not yet seek possession against the tablets (i.e., against the will). but this question arises, whether, the one who received the remaining goods omitting, they accrue to Titius just as if they had accepted shares of the same inheritance. more truly it seems to me that the other goods are devolved by the law of intestacy.
Cum filius liberti impubes, qui subiectus dicitur, ex prima parte bonorum possessionem accipiat, an patronus defuncti possessionem accipere possit, quaesitum est. et sine dubio qui sequentis gradus sunt, non admittuntur interim: cum enim praecedit alia possessio, qui sequitur accipere non potest. plane si contra eum qui subiectus dicitur fuerit iudicatum, data non intellegitur.
When the underage son of a freedman, who is said to be “subject,” accepts possession of the goods from the first part, the question was raised whether the patron of the deceased can accept possession. And without doubt those who are of the following degree are not admitted in the meantime: for since another possession precedes, he who follows cannot accept. Clearly, if judgment has been rendered against him who is called “subject,” the grant is not understood to have been made.
Si falsum liberti testamentum ab aliis in provincia dictum atque ita res per appellationem extracta esset, defuncta medio tempore patroni filia, quam libertus heredem instituerat, filio mulieris servavit divus marcus eam partem bonorum, quam filia patroni vel iure intestati, si vixisset, habere potuit.
If a false will of a freedman had been alleged by others in the province, and thus the matter had been drawn out by appeal, the patron’s daughter having died in the meantime—whom the freedman had appointed heir—the deified Marcus preserved for the woman’s son that share of the estate which the patron’s daughter, whether by the right of being instituted heir or by the law of intestacy, if she had lived, could have had.
Iulianus putat patronum, qui titio pro parte dimidia heredi instituto substitutus eo deliberante bonorum possessionem contra tabulas accepit, si postea titius non adierit hereditatem, nihil ei, qui adit hereditatem, abstulisse, non magis quam si sub condicione fuisset institutus. igitur titio deliberante res in incerto erit, utrumne semis ex substitutione in possessionem convertatur an titio adeunte singulis heredibus partes debitae auferantur.
Julianus thinks that a patron, who, having been substituted to Titius, instituted heir for a half-share, while he was deliberating accepted possession of the goods against the tablets, if afterwards Titius does not enter upon the inheritance, has taken nothing away from him who does enter upon the inheritance, no more than if he had been instituted under a condition. Therefore, while Titius is deliberating, the matter will be uncertain whether the half-share is converted into possession by reason of the substitution, or, if Titius enters, the portions owed are taken from the several heirs.
Si patronum ex debita portione heredem instituas et pure roges fundum dare eique sub condicione tantundem leges, in condicionem fideicommissum redigitur. erit tamen et hic quod moveat: onerabitur enim patronus satisdatione fideicommissi. sed dicendum est ab eo fideicommissario cavendum, a quo patrono legatum est, ut undique patronus suum ius habeat imminutum.
If you institute the patron as heir from the due portion and purely request the giving of a farm, and to that same person you bequeath under a condition an equal amount, the fideicommissum is reduced into the condition. There will, however, be here too something to cause concern: for the patron will be burdened with surety for the fideicommissum. But it must be said that security should be furnished by that fideicommissary by whom a legacy has been left to the patron, so that on all sides the patron may have his right diminished.
Si ex bonis, quae mortis tempore fuerunt, debitam partem dedit libertus in hereditate vel legato, servus tamen post mortem liberti reversus ab hostibus augeat patrimonium: non potest patronus propterea queri, quod minus habeat in servo, quam haberet, si ex debita portione esset institutus. idem est et in alluvione, cum sit satisfactum ex his bonis, quae mortis tempore fuerunt. idem est et si pars legati liberto relicti ab eo, cui simul datum erat, vel hereditatis nunc illis abstinentibus adcrescat.
If, out of the goods which existed at the time of death, the freedman gave the due portion in the inheritance or by a legacy, nevertheless, if a slave after the freedman’s death returns from the enemy and augments the patrimony, the patron cannot on that account complain that he has less in respect of the slave than he would have had, if he had been instituted heir out of the due portion. The same holds in alluvion, since satisfaction has been made out of those goods which existed at the time of death. The same also holds if a share of a legacy left to the freedman accrues to him from the one to whom it had been given at the same time, or if a share of the inheritance accrues, now that those persons abstain.
Quaero, an, si titia patroni filia iactat titium patrem suum, priusquam moreretur, litteras ad se fecisse, quibus adiceret per libertos suos maleficiis appetitum easque litteras se secutam post mortem patris libertos accusare, an ^ ad^ aliquid ei prodesse possit haec excusatio. paulus respondit eam, quae ex voluntate patris accusavit, non debere repelli a bonorum possessione contra tabulas, quoniam non suum iudicium, sed alienum exsecuta est.
I ask whether, if Titia, the patron’s daughter, alleges that Titius her father, before he died, made letters addressed to her, in which he added that he had been assailed by malefic deeds through his freedmen, and that, following those letters, after her father’s death she accuses the freedmen, whether ^ to^ anything this excuse can be of benefit to her. Paul answered that she who accused in accordance with her father’s will ought not to be repelled from the possession of the goods against the tablets, since she carried out not her own judgment but another’s.
Patroni filius epistulam talem liberto emisit: " sempronius zoilo liberto suo salutem. ob merita tua fidemque tuam, quam mihi semper exhibuisti, concedo tibi liberam testamenti factionem". quaero, an patroni filio nihil relinquere debeat. paulus respondit eum libertum, de quo quaeritur, liberam testamenti factionem consecutum non videri.
the patron’s son issued such a letter to the freedman: " sempronius to his freedman zoilus, greetings. on account of your merits and your loyalty, which you have always shown to me, I grant to you free testamentary capacity". I ask whether he ought to leave nothing to the patron’s son. Paulus responded that that freedman, about whom inquiry is made, does not seem to have obtained free testamentary capacity.
Paulus respondit nepotem etiam post mortem avi conceptum superstite liberto bonorum possessionem contra tabulas liberti aviti petere posse et ad hereditatem legitimam eius admitti: responsum enim iuliani tantum ad hereditatem legitimam, item bonorum possessionem avi petendam pertinere.
Paulus responded that a grandson, even conceived after the grandfather’s death, with the freedman surviving, can seek bonorum possession against the tablets (will) of the grandfather’s freedman and be admitted to his legitimate inheritance; for Julian’s responsum pertains only to the legitimate inheritance, and likewise to the seeking of the grandfather’s bonorum possession.
Paulus respondit, quamvis filii a patre milite praeteriti pro exheredatis habeantur, tamen non eo usque silentium patris eis nocere debere, ut et a bonis libertorum avitorum repelli debeant. idem responsum est etiam de bonis libertorum paternorum.
Paulus responded: although sons who are passed over by a father while a soldier are held as disinherited, nevertheless the father’s silence ought not to harm them to such an extent that they must also be excluded from the goods of the grandfathers’ freedmen (liberti). The same was answered also concerning the goods of the fathers’ freedmen.
Si tamen antequam iuberet liberti hereditatem adire, servum vendiderit aut manumiserit et ita ipse novus libertus aut emptor heredes extiterint, verbis edicti non prohibetur patronus accipere contra tabulas bonorum possessionem.
If, however, before he should order the freedman to enter upon the inheritance, he has sold or manumitted the slave, and thus either he himself, now a new freedman, or the purchaser turn out to be heirs, by the words of the edict the patron is not prohibited from receiving bonorum possessio against the tablets.
Sed numquid praetor ei denegare possessorias actiones debeat, si fraudem edicto eius facere voluit, ut pretio uberiore percepto vel tacita pactione etiam hereditatis ex institutione delatae commodum et bonorum possessionis contra tabulas haberet? faciliorque suspicio per filium scriptum heredem quamvis emancipatum adeuntem liberti hereditatem ipsum patronum habere, cum omnia, quae nostra sunt, liberis nostris ex voto paremus.
But should the praetor deny him the possessory actions, if he has wished to commit fraud upon his edict, so that, with a higher price received or by a tacit pact, he might have even the advantage of an inheritance devolved by institution and of bonorum possession contra tabulas? And suspicion is the easier that, through a son written as heir, although emancipated, who enters upon the freedman’s inheritance, the patron himself holds it, since we furnish to our children, according to our vow, all the things that are ours.
Si tamen clusis adhuc tabulis testamenti liberti, cum ignoraret iudicium eius patronus, eorum quid, quae supra scripta sunt, circa institutum subiectum iuri suo fecit, amota fraudis suspicione suo iure in bonorum possessione contra tabulas utetur.
If, however, with the tablets of the freedman’s testament still closed, while his patron was ignorant of his judgment, he did anything of those things which are written above concerning the institution subjected to his own right, with suspicion of fraud removed he will, in his own right, make use of possession of the goods against the will.
Si patronus ex debita portione a liberto scriptus rogatusque hereditatem restituere suspectam dixit et compulsus adire, cum retinere posset, restituerit, non poterit accipere contra tabulas bonorum possessionem, et quia adgnovit iudicium liberti et quia sprevit et quasi damnavit eam possessionem.
If a patron, having been written in by his freedman for the owed portion and asked to restore the inheritance, declared it suspect and, being compelled to enter upon it, although he could have retained it, did restore it, he will not be able to take possession of the goods contrary to the will, both because he acknowledged the freedman’s judgment and because he spurned and, as it were, condemned that possession.
Longe distat ab hoc patroni filius, quem libertus adrogavit et ex minore parte heredem scripsit, cum nemo ex familia patroni alius esset: quamquam enim hic ipso iure, quippe suus, heres deprehendatur, si tamen se non immiscuit hereditati ut patris, sed abstinuit, quasi patroni tamen filius admittendus est ad contra tabulas bonorum possessionem.
Far different from this is the patron’s son, whom the freedman adrogated and appointed heir for a lesser share, when there was no other from the patron’s household: for although this man, by the law itself—being a “suus”—is found to be heir, nevertheless, if he did not involve himself in the inheritance as that of a father, but abstained, he is to be admitted, as a patron’s son, to the bonorum possessio contra tabulas.
Si debenti patrono certam pecuniam liberationem libertus reliquisset isque usus est adversus heredem petentem debitum doli exceptione aut acceptilatione liberatus est debito propter legatum, dicendum est eum non posse accipere contra tabulas bonorum possessionem.
If a freedman had left to his patron, to whom a definite sum of money was owed, a discharge; and he, using against the heir claiming the debt the defense of fraud (exceptio doli), or by acceptilation was released from the debt on account of the legacy, it must be said that he cannot receive the possession of the goods contrary to the tablets (bonorum possessio contra tabulas).
Si eundem libertum et tu capitis accusasti et pater tuus manumisit, non poterit tibi eius liberti bonorum possessio ex edicto praetoris dari. paulus: immo contra accidet, si quem servum accusaveris, deinde is patris tui fuerit factus et is postea eum manumisit.
If you have both accused the same freedman on a capital charge and your father has manumitted him, the possession of that freedman’s goods cannot be given to you under the praetor’s edict. paulus: rather, the contrary will occur, if you have accused some slave, then he has become your father’s, and he afterwards manumitted him.
Sed an omnino petere bonorum possessionem possint, dubitatur: movet enim, quod consentire non possunt, sed per alium possunt petita bonorum possessione ipsi adquirere. sed qua ratione senatus censuit, ut restitui eis ex trebelliano hereditas possit: qua ratione alio senatus consulto heredibus eis institutis a liberto adquirere hereditatem permissum est: ita bonorum quoque possessionem petere dicendum est.
But whether they can at all petition for the possession of goods is doubted: for what moves the question is that they cannot consent, yet through another, once the possession of goods has been petitioned, they can acquire for themselves. But by the same rationale by which the Senate decreed that the inheritance may be restored to them under the Trebellianum; by the same rationale, by another senatorial decree, when heirs had been instituted for them by a freedman, it was permitted to acquire the inheritance: thus it must be said that the possession of goods also may be petitioned.
Senatus consulto quod factum est claudianis temporibus velleo rufo et osterio scapula consulibus de adsignandis libertis in haec verba cavetur: " si, qui duos pluresve liberos iustis nuptiis quaesitos in potestate haberet, de liberto libertave sua significasset, cuius ex liberis suis eum libertum eamve libertam esse vellet, is eave, quandoque is, qui eum eamve manumisit inter vivos vel testamento, in civitate esse desisset, solus ei patronus solave patrona esset, perinde atque si ab eo eave libertatem consecutus consecutave est. utique, si ex liberis quis in civitate esse desisset neque ei liberi ulli essent, ceteris eius liberis qui manumisit perinde omnia iura serventur, ac si nihil de eo liberto eave liberta is parens significasset".
By the senatorial decree which was enacted in the Claudian times, with Velleius Rufus and Ostorius Scapula as consuls, concerning the assigning of freedmen, it is provided in these words: "If someone who had two or more children, procured from lawful marriages, under his power, had indicated, concerning his freedman or freedwoman, which of his own children he wished that freedman or freedwoman to belong to, then he or she, whenever the one who manumitted him or her—whether inter vivos or by testament—had ceased to be in the commonwealth, would be the sole patron to him or the sole patrona to her, just as if he or she obtained freedom from that one. And in any case, if one of the children had ceased to be in the commonwealth and he had no children, all rights shall be preserved for the other children of the one who manumitted, just as if that parent had signified nothing concerning that freedman or freedwoman."
Si sit ex patrono filius unus, ex altero duo et uni eorum libertus adsignatus est, videndum, quot partes fiant hereditatis liberti, utrum tres, ut duas habeat is cui adsignatus est, id est suam et fratris, an vero aequales partes fiant, quoniam per adsignationem alius excluditur. et iulianus libro septuagensimo quinto scripsit magis esse, ut bessem hic habeat, qui fratrem excludit: quod verum est, quamdiu frater eius vivat vel admitti potuit ad legitimam hereditatem: ceterum si fuerit capite minutus, aequales partes habebunt.
If from one patron there is one son, from the other two, and the freedman has been assigned to one of them, it must be considered how many shares are made of the freedman’s inheritance—whether three, so that the one to whom he is assigned may have two, that is, his own and his brother’s, or rather that equal shares be made, since by the assignment another is excluded. And Julian wrote in the seventy-fifth book that it is preferable that he who excludes his brother here should have a bes (two-thirds): which is true so long as his brother lives or could be admitted to the legitimate inheritance; but if he has been reduced in status (capitis deminutio), they will have equal shares.
Idem erit dicendum et si is, qui filium et nepotem habebat, nepoti libertum adsignaverit: admittetur nepos ad legitimam hereditatem, licet sit alterius patroni filius, et hoc contingit patrui vita: ceterum si ille non esset, nihil ei prodesset adsignatio ad deminuendum ius alterius patroni filii.
The same must be said even if one who had a son and a grandson has assigned a freedman to the grandson: the grandson will be admitted to the legitimate inheritance, although he is the son of another patron; and this happens during the life of the paternal uncle: but if he were not, the assignation would in no way profit him for diminishing the right of the son of the other patron.
Unde quaeri poterit, an, si filium habeat et ex eo nepotem, possit, quasi duos habeat in potestate, ius senatus consulti inducere. in qua specie cum placeat etiam ei, qui in potestatem recasurus est, adsignari quare non admittimus, cum utrumque esse in potestate negare non possumus?
Whence it could be asked whether, if he has a son and from him a grandson, he can, as though he had two under his power, apply the right of the senatus consultum. In which case, since it is approved that assignment be made even to him who is going to fall back into the potestas, why do we not admit it, since we cannot deny that both are in his power?
An autem ad legitimam hereditatem admitti possit hic qui est in potestate, tractari poterit. et cum multi sint casus, quibus et libertum habere qui in potestate est possit, cur non hoc quoque admittendum sit, ut per eum pater ad legitimae hereditatis admittatur emolumentum? quod et pomponio recte videtur.
Whether one who is under potestas can be admitted to legitimate inheritance can be discussed. And since there are many cases in which even one who is under potestas can have a freedman, why should it not also be admitted that through him the father is admitted to the emolument of legitimate inheritance? Which also seems correct to Pomponius.
Utrum portio eius, qui in civitate esse desiit vel repudiavit, in familiam redeat? an vero ei potius adcrescat, in cuius persona durat adsignatio? et iulianus libro septuagensimo quinto scripsit adsignationem in huius solius persona locum habere et solum admittendum, quod est verum.
Does the portion of him who has ceased to be in the citizenship or has repudiated it return to the family? Or rather does it accrete to him in whose person the assignment endures? And Julianus wrote in the seventy-fifth book that the assignment has place in the person of this one alone and that he alone is to be admitted, which is true.
Si servus liber esse iussus fuerit et filio legatus, deinde vivus testator eum manumiserit, ad filium libertus quasi adsignatus pertinet. hoc ita est, sive expressum est vel certe intellexit non quasi servum eum legasse, sed quasi libertum adsignasse.
If a slave has been ordered to be free and has been bequeathed to the son, and then the testator, while alive, manumits him, he pertains to the son as a freedman as if assigned. This is so, whether it was expressed, or at any rate it was understood, that he had not bequeathed him as though a slave, but had assigned him as though a freedman.
Sub condicione vel in diem liberto adsignato interim pendente die vel condicione omnia perinde observabuntur, ac si adsignatus non esset: itaque mortuo eo interim ad omnes liberos hereditas et bonorum possessio pertinebit.
With a freedman designated under a condition or to a day, while the day or the condition is pending in the meantime, all things will be observed just as if he had not been designated: and thus, if he dies in the meantime, the inheritance and the possession of the goods will pertain to all the children.
Si quid dolo malo liberti factum esse dicetur, sive testamento facto sive intestato libertus decesserit, quo minus quam pars debita bonorum ad eorum quem perveniat, qui contra tabulas bonorum possessionem accipere possunt: cognoscit praetor et operam dat, ne ea res ei fraudi sit.
If anything is said to have been done by the malicious fraud of a freedman, whether the freedman has died with a testament made or intestate, whereby less than the due share of the goods reaches those who can receive possession of the estate against the tablets, the praetor takes cognizance and gives assistance, lest that matter be to their prejudice.
Si alienatio dolo malo facta sit, non quaerimus, utrum mortis causa facta sit an non sit: omni enim modo revocatur. si vero non sit dolo malo facta, sed alias, tunc actori probandum erit mortis causa factam alienationem. si enim proponas mortis causa factam alienationem, non requirimus, utrum dolo malo facta sit an non sit: sufficit enim docere mortis causa factam, nec immerito: mortis causa enim donationes comparantur legatis et sicut in legatis non quaerimus, dolo malo factum sit an non sit, ita nec in mortis causa donationibus.
If an alienation has been effected with fraudulent intent, we do not inquire whether it was made in contemplation of death or not: for in every case it is revoked. But if it has not been effected with fraudulent intent, but otherwise, then it will be for the plaintiff to prove that the alienation was made in contemplation of death. For if you posit that the alienation was made in contemplation of death, we do not require whether it was effected with fraudulent intent or not: for it is sufficient to show that it was made in contemplation of death, and not without reason: for donations in contemplation of death are compared to legacies, and just as in legacies we do not inquire whether it was done with fraudulent intent or not, so neither in donations in contemplation of death.
Dolum accipere nos oportet eius qui alienavit, non eius cui alienatum est: et ita evenit, ut qui fraudis vel doli conscius non fuit, carere debeat re in fraudem patroni alienata, etsi putavit ingenuum nec credidit libertinum.
We ought to take the dolus as that of the one who alienated, not of the one to whom it was alienated: and thus it comes about that he who was not conscious of fraud or dolus ought to be without the thing alienated in fraud of the patron, even if he supposed [the alienator] to be freeborn and did not believe him a freedman.
Adversus conpatronum, qui contra tabulas bonorum possessionem omisit, faviana non competit, si non plus sit in eo quod donatum est quam pars debita patrono. quare si mortis causa ei donatum sit, partem faciet conpatrono, quemadmodum legatarius patronus facit.
Against a co‑patron who has omitted to claim bonorum possessio contrary to the tablets, the Favian action does not lie, if there is not more in what was donated than the share owed to a patron. Wherefore, if a donation mortis causa has been made to him, it will make up a share for the co‑patron, just as a patron who is a legatee does.
Utrum autem ad ea sola revocanda faviana pertinet, quae quis libertus de bonis deminuit, an etiam ad ea, quae non adquisiit, videndum est. et ait iulianus libro vicensimo sexto digestorum, si hereditatem libertus non adierit fraudandi patroni causa vel legatum reppulerit, favianam cessare: quod mihi videtur verum. quamvis enim legatum retro nostrum sit, nisi repudietur, attamen cum repudiatur, retro nostrum non fuisse palam est.
whether, moreover, the favian action pertains to recalling only those things which a freedman has diminished from the assets, or also to those which he did not acquire, must be considered. and julian says in book 26 of the digest that, if the freedman did not enter upon an inheritance for the purpose of defrauding his patron, or rejected a legacy, the favian action does not apply: which seems true to me. for although a legacy is ours retroactively unless it is repudiated, nevertheless, when it is repudiated, it is plain that retroactively it was not ours.
also in other liberalities which that freedman did not admit, to whom someone wished a donation to be made, the same must be approved—that the Fabiana ceases: for it suffices for the patron if the freedman alienated nothing of his own to his injury, not if he did not acquire; accordingly, even if, when a legacy had been left to him under a condition, he contrived that the condition should not come into existence, or, if he had stipulated under a condition, he preferred that the condition fail, it must be said that the Faviana ceases.
Quid si in lite vinci voluit? si quidem condemnatus est data opera vel in iure confessus, dicendum erit favianam locum habere: quod si noluit optinere, cum peteret, hic videndum. et puto hunc deminuisse de patrimonio: actionem enim de bonis deminuit, quemadmodum si passus esset actionis diem abire.
What if he wished to be beaten in the litigation? If indeed he was condemned by set design or confessed in iure, it will have to be said that the Favian applies; but if he did not wish to obtain victory while he was suing, this needs consideration. And I think he diminished his patrimony: for he diminished the action concerning the goods, just as if he had allowed the day for the action to pass away.
Si quis in fraudem patronorum rem vendiderit vel locaverit vel permutaverit, quale sit arbitrium iudicis, videamus. et in re quidem distracta deferri condicio debet emptori, utrum malit rem emptam habere iusto pretio an vero a re discedere pretio recepto: neque omnimodo rescindere debemus venditionem, quasi libertus ius vendendi non habuerit, nec fraudemus pretio emptorem, maxime cum de dolo eius non disputetur, sed de dolo liberti.
If anyone, in fraud of the patrons, has sold or leased or exchanged a thing, let us see what the arbitrament of the judge should be. And indeed, where the thing has been sold off, the option ought to be tendered to the purchaser, whether he prefers to have the thing bought at a just price, or rather to withdraw from the matter, having received back the price: nor ought we in every case to rescind the sale, as though the freedman had not had the right of selling, nor let us defraud the purchaser with respect to the price, especially since it is not his fraud that is in dispute, but the fraud of the freedman.
Sed si emerit in fraudem patroni libertus, aeque dicendum, si magno emit, in pretio relevandum patronum, condicione non ipsi delata, an velit ab emptione discedere, sed venditori, utrum malit de pretio remittere an potius rem quam vendidit recipere persoluto pretio. et in permutatione et in locatione et conductione similiter idem observabimus.
But if a freedman has purchased in fraud of his patron, it must likewise be said that, if he bought for a great price, the patron is to be relieved in the price, the option not being offered to him whether he wishes to withdraw from the purchase, but to the seller, whether he prefers to remit from the price or rather to receive back the thing which he sold, the price having been paid. And in exchange and in letting and in hiring we shall similarly observe the same.
Sed si rem quidem bona fide vendiderit et sine ulla gratia libertus, pretium autem acceptum alii donavit, videndum erit, quis faviana inquietetur, utrum qui rem emit an vero is qui pretium dono accepit? et pomponius libro octagensimo tertio recte scripsit emptorem non esse inquietandum: fraus enim patrono in pretio facta est: eum igitur qui pretium dono accepit faviana conveniendum.
But if indeed the freedman sold the thing in good faith and without any favor, but donated the price received to another, it will have to be considered whom the Fabiana should disturb—whether the one who bought the thing, or rather the one who received the price as a gift? And Pomponius in the eighty-third book wrote rightly that the buyer is not to be disturbed: for the fraud against the patron was committed in the price; therefore the one who received the price as a gift should be sued by the Fabiana.
Et alias videamus, si dicat patronus rem quidem iusto pretio venisse, verumtamen hoc interesse sua non esse venumdatam inque hoc esse fraudem, quod venierit possessio, in quam habet patronus affectionem vel opportunitatis vel vicinitatis vel caeli vel quod illic educatus sit vel parentes sepulti, an debeat audiri volens revocare. sed nullo pacto erit audiendus: fraus enim in damno accipitur pecuniario.
And let us consider another case: if the patron should say that the thing indeed was sold at a just price, yet that this concerns his own interest—that it ought not to have been vended—and that the fraud lies in this, that a possession has been sold toward which the patron has an affection, whether of opportunity or vicinity or climate, or because he was brought up there or his parents are buried there, whether he ought to be heard when he wishes to revoke. But he shall in no manner be heard: for fraud is taken in the sense of pecuniary damage.
Sed si forte et res vilius distracta sit et pretium alii donatum, uterque faviano iudicio convenietur et qui vili emit et qui pecuniam accepit muneri. is tamen qui emit si malit rem restituere, non alias restituet, quam si pretium quod numeravit recipiat. quid ergo, si delegatus emptor solvit ei cui donabat libertus, an nihilo minus reciperaret?
But if by chance both the thing has been sold off more cheaply and the price has been donated to another, each will be convened by the Favian action: both he who bought cheaply and he who received the money as a gift. However, the one who bought, if he prefers to restore the thing, will not restore it otherwise than if he receives back the price which he counted out. What then, if the buyer, by delegation, paid the one to whom the freedman was giving the gift—would he nonetheless recover it?
Si mutuam pecuniam libertus in fraudem patroni acceperit, an faviana locum habeat, videamus. et quod remedium in hoc est? accepit mutuam: si quod accepit donavit, convenit eum patronus cui donavit libertus: sed accepit et prodegit: non debet perdere qui mutuum dedit, nec ei imputari, cur dedit.
If a freedman has taken money as a loan in fraud of his patron, let us see whether the Fabian action has a place. And what remedy is there in this? He has taken a loan: if what he received he has donated, the patron brings suit against the person to whom the freedman donated: but he took it and squandered it: the one who gave the loan ought not to suffer loss, nor should it be imputed to him, why he gave it.
Si fideiussit apud me libertus vel rem suam pro alio pignori dedit in necem patroni, an faviana locum habeat, videamus, et numquid cum damno meo non debeat patrono subveniri: neque enim donavit aliquid mihi, si pro aliquo intervenit, qui non fuit solvendo: eoque iure utimur. igitur creditor non poterit faviana conveniri: debitor poterit quidem, sed potest et mandati: plane si deficiat mandati actio, quia donationis causa intervenit, erit favianae locus.
If a freedman stood surety with me or gave his property in pledge for another, to the detriment of his patron, let us see whether the Favian has a place, and whether the patron ought not to be aided at my expense: for he did not donate anything to me, if he intervened on behalf of someone who was not solvent; and we use this law. Therefore the creditor cannot be sued by the Favian: the debtor can indeed, but he can also be [sued] by the action of mandate. Clearly, if the action of mandate fails, because a cause of donation intervened, there will be room for the Favian.
Si servo meo vel filio familias libertus in fraudem patroni quid dederit, an adversus me iudicium favianum competat, videamus. et mihi videtur sufficere adversus me patremque arbitrioque iudicis contineri tam id, quod in rem versum est, condemnandi, quam id quod in peculio.
If a freedman, in fraud of his patron, has given something to my slave or to a son in paternal power, let us see whether the Favian action lies against me. And it seems to me sufficient that, against me and against the father alike, the condemnation be, at the judge’s discretion, confined both to that which has been turned to the estate (in rem versum) and to that which is in the peculium.
Si cum servo in fraudem patroni libertus contraxerit isque fuerit manumissus, an faviana teneatur, quaeritur. et cum dixerimus dolum tantum liberti spectandum, non etiam eius cum quo contraxit, potest manumissus iste fabiana non teneri.
If a freedman has contracted with a slave in fraud of the patron, and that one has been manumitted, the question is whether he is held by the faviana. And since we say that only the freedman’s dolus is to be considered, not also that of the one with whom he contracted, this manumitted person can not be held by the fabiana.
Si libertus in fraudem patroni aliquid dederit, deinde, defuncto patrono vivo liberto, filius patroni acceperit bonorum possessionem contra tabulas liberti, an fabiana uti possit ad revocanda ea quae sunt alienata? et est verum, quod et pomponius probat libro octagensimo tertio, item papinianus libro quarto decimo quaestionum, competere ei favianam: sufficere enim, quod in fraudem patronatus factum sit: magis enim fraudem rei, non personae accipimus.
If a freedman has given something in fraud of his patron, and then, the patron having died while the freedman still lives, the patron’s son has received the bonorum possessio contra tabulas of the freedman, may he employ the Fabian action to call back those things that have been alienated? And this is true, as Pomponius also approves in book eighty-three, and likewise Papinian in book fourteen of the Quaestiones: the Fabian action is competent for him; for it suffices that the act was done in fraud of the patronage, since we understand the fraud as against the thing (the right), not the person.
Si patronus heres institutus ex debita parte adierit hereditatem, dum ignorat aliqua libertum in fraudem suam alienasse, videamus, an succurri ignorantiae eius debeat, ne decipiatur liberti fraudibus. et papinianus libro quarto decimo quaestionum respondit in eadem causa manere ea, quae alienata sunt, idcircoque patronum sibi imputare debere, qui, cum posset bonorum possessionem accipere contra tabulas propter ea quae alienata vel mortis causa donata sunt, non fecit.
If a patron, appointed heir to the due share, has entered upon the inheritance while he is unaware that the freedman has alienated certain things in fraud of him, let us see whether his ignorance ought to be helped, lest he be deceived by the freedman’s frauds. And Papinian, in book 14 of the Questions, answered that in the same case the things that have been alienated remain, and therefore the patron must impute it to himself, who, although he could have accepted bonorum possessio contra tabulas on account of those things that were alienated or given mortis causa, did not do so.
Si intestatus libertus decesserit, patronus adeundo hereditatem eius revocat per calvisianam actionem ea, quae alienata sunt dolo malo, quo minus pars ex testamento debita bonorum liberti ad patronum liberosve eius perveniret: idque est, sive petita sit a patrono ab intestato bonorum possessio sive non sit.
If a freedman has died intestate, the patron, by entering upon his inheritance, calls back through the Calvisian action those things that were alienated with malicious fraud, in order that the portion of the freedman’s goods due by testament might not reach the patron or his children: and this holds whether the possession of the estate ab intestato has been sought by the patron or not.
Si libertus intestatus decesserit relicta patrono debita portione aut aliquo amplius, aliquid etiam alienaverit, papinianus libro quarto decimo quaestionum scribit nihil esse revocandum: nam qui potuit alicui relinquere quid testamento, si debitam portionem patrono relinquat praeterea, donando nihil videtur in fraudem facere.
If a freedman has died intestate, the due portion having been left to the patron, or even something more, and has also alienated something, Papinian in the fourteenth book of the Quaestiones writes that nothing is to be revoked: for he who could leave something to someone by testament, if he leaves the due portion to the patron besides, is seen to do nothing in fraud by making a gift.
Si libertus, cum fraudare patronum vellet, filio familias contra senatus consultum pecuniam crediderit, non erit inhibenda actio faviana, quia libertus donasse magis in hunc casum intellegendus est in fraudem patroni quam contra senatus consultum credidisse.
If a freedman, wishing to defraud his patron, has lent money to a son under paternal power contrary to the senatorial decree, the Favian action is not to be barred, because in this case the freedman is to be understood rather to have made a donation in fraud of the patron than to have lent contrary to the senatorial decree.
Libertus cum fraudandi patroni causa fundum seio tradere vellet, seius titio mandavit, ut eum accipiat, ita ut inter seium et titium mandatum contrahatur. quaero, post mortem liberti patronus utrum cum seio dumtaxat qui mandavit actionem habet, an cum titio qui fundum retinet, an cum quo velit agere possit? respondit: in eum, cui donatio quaesita est, ita tamen si ad illum res pervenerit, actio datur, cum omne negotium, quod eius voluntate gestum sit, in condemnationem eius conferatur.
When a freedman, for the purpose of defrauding his patron, wished to transfer an estate to Seius, Seius mandated to Titius that he receive it, in such a way that a contract of mandate was contracted between Seius and Titius. I ask, after the freedman’s death does the patron have an action only against Seius, who gave the mandate, or against Titius, who retains the estate, or can he proceed against whichever he wishes? He responded: an action is granted against the one for whom the donation was procured—but only if the thing has come to him—since every business which has been transacted by his will is brought into his condemnation (liability).
nor can he be thought likely to perform that which another possesses, since by the action of mandate he can obtain the thing, such that either he himself restores it to the patron or compels the one with whom he contracted the mandate to restore it. for what shall we say, if the person interposed in the matter did nothing in deceit? we shall not hesitate that in any case an action cannot be brought against him.
Constitutione divi pii cavetur de impubere adoptando, ut ex bonis, quae mortis tempore illius qui adoptavit fuerunt, pars quarta ad eum pertineat, qui adoptatus est: sed et bona ei, quae adquisiit patri, restitui iussit: si causa cognita emancipatus fuerit, quartam perdit. si quid itaque in fraudem eius alienatum fuerit, quasi per calvisianam vel favianam actionem revocandum est.
By the constitution of the deified Pius it is provided concerning adopting an impubes, that from the goods which were at the time of death of him who adopted, a fourth part should belong to the one who was adopted: but he also ordered that the goods which he acquired for the father be restored to him: if, after inquiry into the cause, he has been emancipated, he loses the fourth. If anything, therefore, has been alienated in fraud of him, it must be called back as though by a Calvisian or Favian action.
Posteaquam praetor locutus est de bonorum possessione eius qui testatus est, transitum fecit ad intestatos, eum ordinem secutus, quem et lex duodecim tabularum secuta est: fuit enim ordinarium ante de iudiciis testantium, dein sic de successione ab intestato loqui.
After the praetor spoke about the possession of the goods of one who has made a testament, he passed over to the intestate, following that order which the Law of the Twelve Tables also followed: for it was the ordinary course first to speak about testamentary actions, then thus to speak about succession from intestacy.
Plane si tempora quidem petendae bonorum possessionis ex testamento largiebantur, verumtamen repudiata est bonorum possessio, dicendum erit ab intestato bonorum possessionem iam incipere: cum enim is qui repudiavit petere bonorum possessionem non potest post repudiationem, consequens erit, ut ab intestato posse peti incipiat.
Plainly, if indeed the periods for petitioning for possession of goods under a testament were being granted, nevertheless, the possession of goods having been repudiated, it must be said that possession of goods from intestacy now begins: for since he who has repudiated cannot seek possession of goods after the repudiation, the consequence will be that it begins to be able to be sought from intestacy.
Liberos autem accipere debemus quos ad contra tabulas bonorum possessionem admittendos diximus, tam naturales quam adoptivos. sed adoptivos hactenus admittimus, si fuerint in potestate: ceterum si sui iuris fuerint, ad bonorum possessionem non invitantur, quia adoptionis iura dissoluta sunt emancipatione.
We must, moreover, understand “children” as those whom we said are to be admitted to the possession of the estate contrary to the tablets (will), both natural and adoptive. But we admit adoptive children only insofar as they have been in power; however, if they have been sui iuris (independent), they are not called to the possession of the estate, because the rights of adoption are dissolved by emancipation.
Si quis filium suum emancipatum in locum nepotis adoptavit et emancipavit, cum haberet et nepotem ex eo, quaesitum est apud Marcellum, an adoptio rescissa impediat nepotem. sed cum soleat emancipato patri iungi nepos, quis non dicat, etsi adoptatus sit et quasi filius, nihilo minus filio suo eum non obstare, quia quasi filius adoptivus est in potestate, non quasi naturalis?
If someone adopted his own emancipated son into the place of a grandson and emancipated him, while he also had a grandson from that son, it was asked before Marcellus whether the rescinded adoption would impede the grandson. But since a grandson is wont to be joined to his father who has been emancipated, who would not say that, although he has been adopted and is as it were a son, nonetheless he does not stand in the way of his own son, because he is, as it were, an adoptive son in potestas, not, as it were, a natural one?
Si heres institutus non habeat voluntatem, vel quia incisae sunt tabulae vel quia cancellatae vel quia alia ratione voluntatem testator mutavit voluitque intestato decedere, dicendum est ab intestato rem habituros eos, qui bonorum possessionem acceperunt.
If the instituted heir does not have the testament, either because the tablets have been incised or because they have been canceled, or because by some other method the testator changed his will and wished to die intestate, it must be said that those who have accepted possession of the goods will hold the estate from intestacy.
Si emancipatus filius exheres fuerit, is autem qui in potestate fuerat praeteritus, emancipatum petentem ab intestato bonorum possessionem unde liberi tueri debet praetor usque ad partem dimidiam, perinde atque si nullas tabulas pater reliquisset.
If an emancipated son has been disinherited, and one who had been in his power has been passed over, the praetor ought to protect the emancipated man seeking from intestacy the possession of goods under the heading “where the children [are called]” (unde liberi) up to a half share, just as if the father had left no testamentary tablets.
Emancipatus praeteritus si contra tabulas bonorum possessionem non acceperit et scripti heredes adierint hereditatem, sua culpa amittit paternam hereditatem: nam quamvis secundum tabulas bonorum possessio petita non fuerit, non tamen eum praetor tuetur, ut bonorum possessionem accipiat unde liberi. nam et patronum praeteritum, si non petat contra tabulas bonorum possessionem, ex illa parte edicti, unde legitimi vocantur, non solet tueri praetor adversus scriptos heredes.
An emancipated son who has been passed over, if he does not accept possession of the estate “against the tablets,” and the instituted heirs have entered upon the inheritance, loses the paternal inheritance by his own fault: for although possession of the estate “according to the tablets” has not been sought, nevertheless the praetor does not protect him so that he may receive possession of the estate from the head “whence the children.” For the praetor is not wont to protect even a patron who has been passed over, if he does not seek possession of the estate “against the tablets,” from that part of the edict “whence the legitimate heirs are called,” against the instituted heirs.
Liberi et capite minuti per edictum praetoris ad bonorum possessionem vocantur parentium, nisi si adoptivi fuerint: hi enim et liberorum nomen amittunt post emancipationem. sed si naturales emancipati et adoptati iterum emancipati sint, habent ius naturale liberorum.
Children and those reduced in status (capite minuti) are called by the praetor’s edict to the possession of the goods (bonorum possessio) of their parents, unless they have been adopted; for these even lose the name of children after emancipation. But if natural children, having been emancipated and adopted, are emancipated again, they have the natural right of children.
Si quis ex his, quibus bonorum possessionem praetor pollicetur, in potestate parentis, de cuius bonis agitur, cum is moritur, non fuerit, ei liberisque, quos in eiusdem familia habebit, si ad eos hereditas suo nomine pertinebit neque nominatim exheredes scripti erunt, bonorum possessio eius partis datur, quae ad eum pertineret, si in potestate permansisset, ita, ut ex ea parte dimidiam habeat, reliquum liberi eius, hisque dumtaxat bona sua conferat.
If anyone among those to whom the praetor promises possession of the goods was not in the power of the parent whose goods are in question when he dies, then to him and to the children whom he will have in that same family, if the inheritance will pertain to them in their own name and they will not have been written down as disinherited by name, possession of the goods is given of that share which would pertain to him if he had remained in potestas, in such a way that from that share he has one half, the remainder his children; and to these only he shall confer his own goods.
Sed et si filium et nepotem ex eo pater emancipaverit, filius solus veniet ad bonorum possessionem, quamvis capitis deminutio per edictum nulli obstet. quin etiam hi quoque, qui in potestate numquam fuerunt nec sui heredis locum optinuerunt, vocantur ad bonorum possessionem parentium. nam si filius emancipatus reliquerit in potestate avi nepotem, dabitur ei, qui in potestate relictus sit, patris emancipati bonorum possessio: et si post emancipationem procreaverit, ita nato dabitur avi bonorum possessio, scilicet non obstante ei patre suo.
But also, if a father shall have emancipated his son and a grandson from that son, the son alone will come to the bonorum possessio, although capitis deminutio by the edict is an obstacle to no one. Indeed, even those who have never been in power nor have held the position of a sui heres are called to the bonorum possessio of their parents. For if an emancipated son shall have left a grandson in the power of the grandfather, the bonorum possessio of the emancipated father will be given to him who has been left in power; and if he shall have begotten after emancipation, then to the one born the bonorum possessio of the grandfather will be given, namely, his own father not standing in the way.
Si pater filium emancipaverit, nepotem retinuerit, deinde filius decesserit: et rei aequitas et causa edicti, quo de bonorum possessione liberis danda cavetur, efficit, ut eius ratio habeatur et bonorum possessio intestato patris detur, ut tamen bona sorori, quae necessaria heres patri extitit, conferre cogatur avus, qui per eum bonorum possessionis emolumentum adquisiturus est: nisi forte avus iste nullum ex his fructum adquirere vult paratusque est de potestate nepotem demittere, ut ad emancipatum emolumentum omne bonorum possessionis perveniat. nec idcirco soror, quae patri heres extitit, iuste queri poterit, quod eo facto a collationis commodo excluditur, cum avo quandoque intestato defuncto ad bona eius simul cum fratre possit venire.
If a father has emancipated his son, has retained the grandson, and then the son has died: both the equity of the matter and the purpose of the edict, by which it is provided that bonorum possessio be given to the children, bring it about that account is taken of him and that bonorum possessio of the father who died intestate is granted, yet in such a way that the grandfather, who through him is going to acquire the emolument of bonorum possessio, is compelled to contribute the goods to the sister who stood as the necessary heir to the father: unless perhaps that grandfather wishes to acquire none of these fruits and is prepared to let the grandson out of his power, so that the whole emolument of bonorum possessio may come to the emancipated. Nor for that reason will the sister, who stood heir to her father, be able justly to complain that by that act she is excluded from the benefit of collation, since, when the grandfather at some time has died intestate, she can come to his goods together with her brother.
Scripto herede deliberante filius exheredatus mortem obit atque ita scriptus heres omisit hereditatem. nepos ex illo filio susceptus avo suus heres erit neque pater videbitur obstitisse, cuius post mortem legitima defertur hereditas. nec dici potest heredem, sed non suum nepotem fore, quod proximum gradum numquam tenuerit, cum et ipse fuerit in potestate neque pater eum in hac successione praevenerit.
While the instituted heir is deliberating, the disinherited son meets death, and thus the instituted heir omitted (failed to take) the inheritance. A grandson begotten from that son will be the grandfather’s own heir (suus heres), nor will the father be seen to have obstructed, upon whose death the legitimate inheritance is delated. Nor can it be said that he will be an heir, yet not a “own” grandson, on the ground that he never held the nearest degree, since he too was under potestas, and his father did not precede him in this succession.
and otherwise, if he is not a suus heir, by what right will he be an heir, who without doubt is not an agnate? moreover, even if the grandson has not been disinherited, the inheritance under the testament can be entered upon by the instituted heir, the son having died: therefore he who does not obstruct under the law of intestacy will be seen to have obstructed under the law of testacy.
Filius familias ut proximus cognatus patre consentiente possessionem adgnovit: quamvis per condicionem testamento datam, quod in patris potestate manserit, ab hereditate sit exclusus, tamen utiliter possessionem adgnovisse videbitur nec in edicti sententiam incidet, quoniam possessionem secundum tabulas non adgnovit, cum inde rem habere non poterit nec in filii potestate condicio fuerit nec facile pater emancipare filium cogi poterit.
A son in the family, as the nearest cognate, with the father consenting, acknowledged possession: although by a condition given in the testament, because he remained in his father’s power, he has been excluded from the inheritance, nevertheless he will be seen to have acknowledged the possession usefully, nor will he fall under the purport of the edict, since he did not acknowledge possession according to the tablets, seeing that he could not have the matter from that source, nor was the condition in the son’s power, nor can the father easily be compelled to emancipate the son.
Haec verba edicti " tum quem ei heredem esse oporteret, si intestatus mortuus esset" paratatikws et cum quodam temporis spatio accipiuntur: non ad mortis testatoris tempus referuntur, sed ad id, quo bonorum possessio peteretur. et ideo legitimum heredem, si capite deminutus esset, ab hac bonorum possessione summoveri palam est.
These words of the edict " tum whom it would be proper to be his heir, if he had died intestate" are taken paratactically and with a certain interval of time: they are not referred to the time of the testator’s death, but to that at which the possession of the estate is sought. And therefore it is clear that the legitimate heir, if reduced in status (capite deminutus), is removed from this possession of the estate.
Si repudiaverint sui ab intestato bonorum possessionem, adhuc dicemus obstare eos legitimis, hoc est his, quibus legitima potuit deferri hereditas, idcirco, quia repudiando quasi liberi bonorum possessionem hanc incipiunt habere quasi legitimi.
If the sui repudiate the bonorum possession ab intestato, we shall still say that they obstruct the legitimi, that is, those to whom the legitimate inheritance could be deferred, for this reason: because by repudiating, as children, they begin to have this bonorum possession as though they were legitimi.
Si quis decesserit, de quo incertum est, utrum pater familias an filius familias sit, quia pater eius ab hostibus captus adhuc vivat vel quod alia causa suspendebat eius statum, magis est, ne possit peti bonorum eius possessio, quia nondum intestatum eum esse apparet, cum incertum sit, an testari possit. cum igitur coeperit certi status esse, tunc demum petenda est bonorum possessio: non cum certum esse coeperit intestatum esse, sed cum certum esse coeperit patrem familias esse.
If someone has died, about whom it is uncertain whether he is a paterfamilias or a filiusfamilias, because his father, captured by enemies, is still alive, or because some other cause was suspending his status, the better view is that the possession of his estate cannot be sought, because it does not yet appear that he is intestate, since it is uncertain whether he is able to make a will. Therefore, when his status has begun to be certain, then and only then is the possession of the estate to be sought: not when it has become certain that he is intestate, but when it has become certain that he is a paterfamilias.
Haec autem bonorum possessio omnem vocat, qui ab intestato potuit esse heres, sive lex duodecim tabularum eum legitimum heredem faciat sive alia lex senatusve consultum. denique mater, quae ex senatus consulto venit tertulliano, item qui ex orphitiano ad legitimam hereditatem admittuntur, hanc bonorum possessionem petere possunt.
Moreover, this bonorum possessio summons everyone who could have been an heir ab intestato, whether the Law of the Twelve Tables makes him a legitimate heir, or some other statute or senatus consultum. Finally, the mother who comes in under the senatus consultum Tertullianum, likewise those who by the Orphitian (senatus consultum Orphitianum) are admitted to the legitimate inheritance, can petition for this bonorum possessio.
Generaliter igitur sciendum est, quotienscumque vel lex vel senatus defert hereditatem, non etiam bonorum possessionem, ex hac parte eam peti oportere: cum vero etiam bonorum possessionem dari iubet, tum ex illa parte, qua ex legibus, peti debere: sed et ex hac parte poterit.
Generally, therefore, it must be known that whenever either a statute or the senate confers an inheritance, but not also bonorum possession, it ought to be sought under this head; but when it also orders that bonorum possession be given, then it ought to be sought under that head, namely the one “from the laws”; yet it can also be from this head.
Si ex duobus fratribus alter decesserit testamento iure facto, dein deliberante herede alter quoque intestato decesserit et scriptus heres omiserit hereditatem, patruus legitimam hereditatem habebit: nam haec bonorum possessio " tum quem heredem esse oportet" ad id tempus refertur, quo primum ab intestato bonorum possessio peti potuisset.
If out of two brothers one has died with a will duly made, then, while the heir is deliberating, the other also has died intestate, and the named heir has omitted the inheritance, the paternal uncle will have the legitimate inheritance: for this possession of the goods " then the one whom it is proper to be heir" is referred to that point of time at which the possession of the goods from an intestate could first have been sought.
Inter adgnatos et cognatos hoc interest, quod in adgnatis et cognati continentur, in cognatis non utique et adgnati. verbi gratia patris frater, id est patruus, et adgnatus est et cognatus, matris autem frater, id est avunculus, cognatus est, adgnatus non est.
Between agnates and cognates this is the difference: that in agnates, cognates are included, whereas in cognates, not necessarily also agnates. For example, a father’s brother, that is, a paternal uncle, is both an agnate and a cognate; a mother’s brother, that is, a maternal uncle, is a cognate, not an agnate.
Nati post mortem patris vel post captivitatem sive deportationem, sed et hi, qui tempore, quo capiebatur vel deportabatur pater, in potestate fuerunt, ius inter se consanguinitatis habent, etsi heredes patri non extiterint, sicuti exheredati.
Those born after the death of the father or after his captivity or deportation, and also those who at the time when the father was being captured or deported were under his power, have among themselves the right of consanguinity, even if they have not become heirs to the father, just like those disinherited.
Cognationem facit etiam adoptio: etenim quibus fiet adgnatus hic qui adoptatus est, isdem etiam cognatus fiet: nam ubicumque de cognatis agitur, ibi sic accipiemus, ut etiam adoptione cognati facti contineantur. evenit igitur, ut is qui in adoptionem datus est tam in familia naturalis patris iura cognationis retineat quam in familia adoptiva nanciscatur: sed eorum tantum cognationem in adoptiva familia nanciscetur, quibus fit adgnatus, in naturali autem omnium retinebit.
Cognation is also made by adoption: indeed, with those to whom he who has been adopted becomes an agnate, with those same he will also become a cognate; for wherever it is a question of cognates, we will take it thus, that those who have become cognates by adoption are included as well. It therefore happens that he who has been given into adoption both retains the rights of cognation in the family of his natural father and acquires them in the adoptive family; but he will acquire cognation in the adoptive family only with those to whom he becomes an agnate, whereas in the natural family he will retain it with all.
Si quis proximior cognatus nasci speretur, in ea condicione est, ut dici debeat obstare eum sequentibus: sed ubi natus non est, admittemus eum, qui post ventrem proximus videbatur. sed hoc ita demum erit accipiendum, si hic qui in utero esse dicitur vivo eo de cuius bonorum possessione agitur fuit conceptus, nam si post mortem, neque obstabit alii neque ipse admittetur, quia non fuit proximus cognatus ei, quo vivo nondum animax fuerit.
If some nearer kinsman is expected to be born, he is in such a condition that he ought to be said to bar those who follow; but when he is not born, we will admit him who seemed nearest after the one in the womb. But this is to be understood only if he who is said to be in utero was conceived while the one whose possession of the goods (estate) is at issue was alive; for if after his death, he will neither bar another nor will he himself be admitted, because he was not a nearest kinsman to him, since, while he was alive, he had not yet been animate.
Si qua praegnas decesserit et utero exsecto partus sit editus, in ea condicione est partus iste, ut matris suae accipere bonorum possessionem possit " unde proximi cognati". sed post senatus consultum orphitianum et " unde legitimi" petere poterit, quia mortis tempore in utero fuit.
If some pregnant woman has died and, the womb having been cut open, the child has been brought forth, that child is in such a condition that he can receive his mother’s possession of goods under "unde proximi cognati". But after the Orphitian senatus-consultum he will also be able to petition under "unde legitimi", because at the time of death he was in the womb.
Hac parte proconsul naturali aequitate motus omnibus cognatis promittit bonorum possessionem, quos sanguinis ratio vocat ad hereditatem, licet iure civili deficiant. itaque etiam vulgo quaesiti liberi matris et mater talium liberorum, item ipsi fratres inter se ex hac parte bonorum possessionem petere possunt, quia sunt invicem sibi cognati, usque adeo ut praegnas quoque manumissa si pepererit, et is qui natus est matri et mater ipsi et inter se quoque qui nascuntur cognati sint.
in this part the proconsul, moved by natural equity, promises possession of the goods to all cognates, whom the reckoning of blood calls to the inheritance, although they fail under the civil law. and so even children vulgarly begotten, as regards their mother, and the mother of such children, likewise the brothers themselves among one another, can seek from this part possession of the goods, because they are cognates to one another; to such an extent that even a pregnant woman, when manumitted, if she gives birth, both he who is born is a cognate to the mother and the mother to him, and those who are born are also cognates among themselves.
Capitis deminutione peremuntur cognationes, quae per adoptionem adquisitae sunt. igitur si post mortem verbi gratia fratris adoptivi intra centensimum diem adoptivus frater capite deminutus fuerit, bonorum possessionem accipere non poterit, quae proximitatis nomine fratris defertur: praetorem enim non solum mortis tempus, sed etiam id, quo bonorum possessio petitur, intueri palam est.
By diminution of status (capitis deminutio) the cognations that have been acquired through adoption are extinguished. igitur if, after the death, for example, of an adoptive brother, within the hundredth day the adoptive brother should be diminished in status (capite deminutus), he will not be able to receive the possession of the goods that is conferred under the designation of the brother’s proximity; for it is plain that the praetor regards not only the time of death, but also that at which the possession of the goods is sought.
Si spurius intestato decesserit, iure consanguinitatis aut adgnationis hereditas eius ad nullum pertinet, quia consanguinitatis itemque adgnationis iura a patre oriuntur: proximitatis autem nomine mater eius aut frater eadem matre natus bonorum possessionem eius ex edicto petere potest.
If a spurious (illegitimate) child dies intestate, his inheritance pertains to no one by right of consanguinity or agnation, because the rights of consanguinity and likewise of agnation arise from the father: however, under the name of proximity, his mother or a brother born of the same mother can seek possession of his goods (bonorum possessio) under the edict.
Fratris filius pro parte heres institutus, cum patruum surdum esse contenderet atque ideo testamentum facere non potuisse, possessionem ut proximus cognatus accepit. ex die mortis temporis haberi rationem placuit, quia verisimile non videbatur tam coniunctum sanguine defuncti valetudinem ignorasse.
The brother’s son, instituted heir for a share, since he contended that his paternal uncle was deaf and therefore could not make a testament, received possession as the nearest cognate. from the day of death it was decided that the reckoning of time be had, because it did not seem likely that one so closely conjoined in the blood of the deceased had been ignorant of his state of health.
Intestata reliquit sororem septiciam diverso patre natam et praegnatem matrem ex alio marito: quaero, si mater hereditatem repudiaverit, dum adhuc praegnas est, posteaque enixa fuerit semproniam, an etiam sempronia bonorum titiae possessionem accipere possit. respondit, si mater hereditate exclusa est, eam quae, ut proponeretur, postea nata est, accipere posse.
She died intestate, leaving a half-sister septicia, born of a different father, and a pregnant mother by another husband: I ask, if the mother should repudiate the inheritance while she is still pregnant, and afterwards should give birth to sempronia, whether sempronia also can receive possession of titia’s goods. He responded that, if the mother is excluded from the inheritance, she who, as proposed, was later born can receive it.
Successorium edictum idcirco propositum est, ne bona hereditaria vacua sine domino diutius iacerent et creditoribus longior mora fieret. e re igitur praetor putavit praestituere tempus his, quibus bonorum possessionem detulit, et dare inter eos successionem, ut maturius possint creditores scire, utrum habeant, cum quo congrediantur, an vero bona vacantia fisco sint delata, an potius ad possessionem bonorum procedere debeant, quasi sine successore defuncto.
The successorial edict was proposed for this reason: lest the hereditary goods lie vacant without an owner for too long and a longer delay befall the creditors. Therefore the praetor thought it expedient to prescribe a time for those to whom he had conferred possession of the goods, and to grant succession among them, so that the creditors might more promptly know whether they have someone against whom to proceed, or whether the vacant goods have been delivered to the fisc (treasury), or rather whether they ought to proceed to possession of the goods, as if the deceased were without a successor.
Decretalis bonorum possessio an repudiari possit, videamus. et quidem diebus finiri potest: sed repudiari eam non posse verius est, quia nondum delata est, nisi cum fuerit decreta: rursum posteaquam decreta est, sera repudiatio est, quia quod adquisitum est repudiari non potest.
Let us see whether decretal possession of goods can be repudiated. And indeed it can be limited by days; but it is truer that it cannot be repudiated, because it has not yet been conferred, except when it has been decreed: again, after it has been decreed, repudiation is belated, because what has been acquired cannot be repudiated.
Quod dicimus " intra dies centum bonorum possessionem peti posse", ita intellegendum est, ut et ipso die centensimo bonorum possessio peti possit, quemadmodum intra kalendas etiam ipsae kalendae sunt. idem est et si " in diebus centum" dicatur.
When we say "that the possession of goods can be petitioned for within 100 days," it is to be understood so that the possession of goods can be petitioned for even on the hundredth day itself, just as within the Kalends the Kalends themselves are also included. The same holds if "in 100 days" is said.
Sed videndum est, an inter ceteros ipse quoque qui exclusus est admittatur. ut puta filius est in potestate: delata est ei bonorum possessio ex prima parte, unde liberis defertur: exclusus est tempore aut repudiatione: ceteris defertur: sed ipse sibi succedat ex hac successoria parte? et magis est, ut succedat, ut unde legitimi possit petere et post hos suo ordine ex illa parte, unde proximi cognati vocantur.
But it must be considered whether among the others he too who has been excluded is admitted. For instance, a son is in potestas: the possession of goods is conferred on him from the first part, whence it is tendered to children: he is excluded by lapse of time or by repudiation: it is tendered to the others: but should he himself succeed in his own right from this successorial part? And the better view is that he does succeed, so that he may be able to claim from that head, “whence the legitimi,” and after these, in his own order, from that part “whence the nearest cognates are called.”
and we make use of this law, that he be admitted: therefore he will be able from the subsequent part to succeed to himself. likewise this can be said also in the possession of goods according to the tablets, that, if he who could have asked for the possession of goods according to the tablets, and also could succeed ab intestato, did not ask for the possession of goods according to the tablets, he succeeds to himself.
Largius tempus parentibus liberisque petendae bonorum possessionis tribuitur, in honorem sanguinis videlicet, quia artandi non erant, qui paene ad propria bona veniunt. ideoque placuit eis praestitui annum, scilicet ita moderate, ut neque ipsi urguerentur ad bonorum possessionis petitionem neque bona diu iacerent. sane nonnumquam urguentibus creditoribus interrogandi sunt in iure, an sibi bonorum possessionem admittant, ut, si repudiare se dicant, sciant creditores, quid sibi agendum esset: si deliberare se adhuc dicant, praecipitandi non sunt.
A more ample time is granted to parents and children for seeking the possession of the goods, namely in honor of the blood, because they were not to be constrained, who come almost to their own goods. And so it was decided that a year be afforded to them, namely with such moderation that neither they themselves should be pressed to the petition for possession of the goods, nor should the goods lie long. Indeed, sometimes when creditors are pressing, they must be asked in court whether they admit the possession of the goods for themselves, so that, if they say they repudiate it, the creditors may know what ought to be done by them; if they say they are still deliberating, they are not to be hurried.
Non solum autem cum suo nomine veniunt liberi parentesque, hoc eis tribuitur, verum etiam si servus eius, qui ex liberis patentibusque est, heres institutus est, intra annum competit bonorum possessio: persona enim ea est, quae meruit hoc beneficium, quae petat.
Not only, moreover, do children and parents come under their own name—this is granted to them—but also, if his slave, who belongs to the children and parents, has been instituted heir, within a year possession of the estate (bonorum possessio) lies: for it is that person who has merited this benefice who should petition.
Inferioris gradus cognatus beneficium edicti successorii non habuit, cum prior ex propria parte possessionem accepisset: nec ad rem pertinuit, quod abstinendi facultatem ob auxilium aetatis prior cognatus acceperat. igitur fisco vacantia bona recte deferri placuit.
A kinsman of a lower degree did not have the benefit of the successorial edict, since the prior had accepted possession of his own share: nor did it pertain to the matter that the prior kinsman had received the faculty of abstaining by reason of age-relief. Therefore it was decided that the vacant goods be rightly delivered to the fisc.
Sed superior quidem et inferior cognatio a primo gradu incipit, ex transverso sive a latere nullus est primus gradus et ideo incipit a secundo. itaque in primo gradu cognationis superioris quidem et inferioris ordinis cognati possunt concurrere, ex transverso vero numquam eo gradu quisquam concurrere potest. at in secundo et tertio et deinceps in ceteris possunt etiam ex transverso quidam concurrere et cum superioris ordinis cognatis.
But the superior and inferior cognation begins from the first degree; from the transverse or from the side there is no first degree, and therefore it begins from the second. And so, in the first degree of cognation, kinsmen of the superior and of the inferior order can concur, but from the side no one can ever concur in that degree. But in the second and third and thereafter in the others, certain persons also from the side can concur, and with kinsmen of the superior order.
Tertio gradu sunt supra proavus proavia. infra pronepos proneptis. ex transverso fratris sororisque filius filia: et convenienter patruus amita, avunculus matertera.
In the third degree are, above, the great-grandfather and great-grandmother. Below, the great-grandson and great-granddaughter. On the collateral side, the son and daughter of a brother and of a sister: and correspondingly, the paternal uncle (patruus), the paternal aunt (amita), the maternal uncle (avunculus), the maternal aunt (matertera).
Quarto gradu sunt supra abavus abavia. infra abnepos abneptis. ex transverso fratris sororisque nepos neptis: et convenienter patruus magnus amita magna ( id est avi frater et soror), avunculus magnus matertera magna ( id est aviae frater et soror): item fratres patrueles sorores patrueles ( id est qui quaeve ex duobus fratribus progenerantur), item consobrini consobrinaeque ( id est qui quaeve ex duabus sororibus nascuntur, quasi consororini), item amitini amitinae ( id est qui quaeve ex fratre et sorore propagantur). sed fere vulgus omnes istos communi appellatione consobrinos vocant.
In the fourth degree, above are the great-great-grandfather and great-great-grandmother; below, the great-great-grandson and great-great-granddaughter. from the collateral line, the grandson and granddaughter of a brother or sister: and correspondingly the great-uncle and great-aunt ( id est the brother and sister of a grandfather), the great-uncle and great-aunt on the maternal side ( id est the brother and sister of a grandmother): likewise cousin-brothers and cousin-sisters by two brothers ( id est those who are progenerated from two brothers), likewise consobrini and consobrinae ( id est those who are born from two sisters, as it were “co-sororal”), likewise amitini and amitinae ( id est those who are propagated from a brother and a sister). but generally the common folk call all these by the common appellation consobrini.
Quinto gradu sunt supra atavus atavia. infra adnepos adneptis. ex transverso fratris et sororis pronepos proneptis: et convenienter propatruus et proamita ( id est proavi frater et soror), proavunculus et promatertera ( id est proaviae frater et soror): item fratris patruelis sororis patruelis filius filia, et similiter consobrini consobrinae, item amitini amitinae filius filia: propior sobrino propior sobrina ( isti sunt patrui magni amitae magnae, avunculi magni materterae magnae filius filia),
In the fifth degree are, above, the great-great-great‑grandfather and great-great-great‑grandmother; below, the great-great‑grandson and great-great‑granddaughter. From the transverse line, the brother’s and sister’s great‑grandson and great‑granddaughter; and correspondingly, the great‑granduncle and great‑grandaunt (that is, the brother and sister of the great‑grandfather), the great‑granduncle and great‑grandaunt (that is, the brother and sister of the great‑grandmother): likewise the son and daughter of a paternal cousin (the cousin who is a brother or sister by the father’s brother), and similarly of maternal cousins, likewise the son and daughter of cousins by a father’s sister: the nearer cousin (sobrinus) and the nearer cousin (sobrina) (these are the son and daughter of a great paternal uncle and great paternal aunt, and of a great maternal uncle and great maternal aunt),
Sexto gradu sunt supra triavus triavia. infra trinepos trineptis. ex transverso fratris et sororis abnepos abneptis: et convenienter abpatruus abamita ( id est abavi frater et soror), abavunculus abmatertera ( id est abaviae frater et soror): item patrui magni amitae magnae, avunculi magni materterae magnae nepos neptis: item fratris patruelis sororis patruelis, consobrini consobrinae, amitini amitinae nepos neptis: propatrui proamitae, proavunculi promaterterae filius filia.
In the sixth degree are, above, the great-great-great-great-grandfather and great-great-great-great-grandmother; below, the great-great-great-great-grandson and great-great-great-great-granddaughter. from the collateral line, the great-great-grandnephew and great-great-grandniece of a brother and of a sister: and correspondingly the great-great-grand-uncle and great-great-grand-aunt (that is, the brother and sister of the great-great-grandfather), the great-great-grand-uncle and great-great-grand-aunt on the maternal line (that is, the brother and sister of the great-great-grandmother): likewise, the grandson and granddaughter of a great paternal-uncle and great paternal-aunt, and of a great maternal-uncle and great maternal-aunt: likewise, the grandson and granddaughter of a paternal cousin (male and female), of a cousin on the maternal side (consobrinus, consobrina), of a cousin through a paternal aunt (amitinus, amitina): the son and daughter of a great-uncle and great-aunt (paternal), of a great maternal-uncle and great maternal-aunt.
Admonendi tamen sumus parentium liberorumque personas semper duplari: avum enim et aviam tam maternos quam paternos intellegemus, item nepotes neptesque tam ex filio quam ex filia: quam rationem scilicet in omnibus deinceps gradibus supra infraque sequemur.
Yet we must be admonished that the persons of parents and children are always to be doubled: for we shall understand the grandfather and grandmother both maternal and paternal, likewise grandsons and granddaughters both from a son and from a daughter: which rule, of course, we shall follow in all the subsequent degrees, above and below.
Cognationis substantia bifariam apud romanos intellegitur: nam quaedam cognationes iure civili, quaedam naturali conectuntur, nonnumquam utroque iure concurrente et naturali et civili copulatur cognatio. et quidem naturalis cognatio per se sine civili cognatione intellegitur quae per feminas descendit, quae vulgo liberos peperit. civilis autem per se, quae etiam legitima dicitur, sine iure naturali cognatio consistit per adoptionem.
The substance of cognation is understood among the romans in a twofold way: for certain cognations are connected by civil law, certain by natural, and sometimes, with both laws concurring, cognation is coupled both by natural and by civil law. And indeed natural cognation by itself, without civil cognation, is understood as that which descends through females, the woman having borne children out of wedlock. But civil cognation by itself, which is also called legitimate, stands without natural law by means of adoption.
Kinship subsists under both laws when, once lawful nuptials have been contracted, it is joined. But natural cognation is called by this very name; civil cognation, although it too by itself is most fully called by this name, is nevertheless properly called agnation, namely that which occurs through males.
Sed quoniam quaedam iura inter adfines quoque versantur, non alienum est hoc loco de adfinibus quoque breviter disserere. adfines sunt viri et uxoris cognati, dicti ab eo, quod duae cognationes, quae diversae inter se sunt, per nuptias copulantur et altera ad alterius cognationis finem accedit: namque coniugendae adfinitatis causa fit ex nuptiis.
But since certain rights also obtain among affines, it is not out of place here to discourse briefly about affines as well. Affines are the cognates of the husband and of the wife, so called from this: that two cognations, which are distinct from one another, are coupled through nuptials, and the one comes to the boundary of the other cognation; for indeed a conjugal affinity arises from nuptials.
Et quidem viri pater uxorisque socer, mater autem eorum socrus appellatur, cum apud graecos proprie viri pater hekuros, mater vero hekura vocitetur, uxoris autem pater penveros et mater penvera vocatur. filii autem uxor nurus, filiae vero vir gener appellatur. uxor liberis ex alia uxore natis noverca dicitur, matris vir ex alio viro natis vitricus appellatur: eorum uterque natos aliunde privignos privignasque vocant.
And indeed the husband’s father and the wife’s are called father-in-law, but their mother is called mother-in-law; whereas among the Greeks, properly, the husband’s father is called hekuros and the mother hekura, but the wife’s father is called penveros and the mother penvera. The son’s wife is called daughter-in-law, and the daughter’s husband is called son-in-law. A wife, with respect to children born from another wife, is called stepmother, and the mother’s husband, with respect to those born from another man, is called stepfather: each of these calls children born from elsewhere stepsons and stepdaughters.
it can also be defined thus. A father-in-law is my wife's father, I am his son-in-law: a great-father-in-law is said to be my wife's grandfather, I am his great-son-in-law: and conversely my father is my wife's father-in-law, she is his daughter-in-law: and my grandfather is my wife's great-father-in-law, she is to him a great-daughter-in-law. Likewise a great-mother-in-law to me is my wife's grandmother, I am her great-son-in-law: and conversely my mother is my wife's mother-in-law, she to her is a daughter-in-law: and my grandmother is my wife's great-mother-in-law and my wife is to her a great-daughter-in-law.
My stepson is my wife’s son born from another man; I am to him a stepfather: and conversely my wife is called a stepmother to the children whom I have from another wife; my children are to her stepchildren. The husband’s brother is a levir. He among the Greeks is called daer, as is related in Homer: for thus Helen says to Hector: “daer emeio kunos kakomyxanou okruoessys.”
In adoptionem datus aut emancipatus quascumque cognationes adfinitatesque habuit, retinet, adgnationis iura perdit. sed in eam familiam, ad quam per adoptionem venit, nemo est illi cognatus praeter patrem eosve, quibus adgnascitur: adfinis autem ei omnino in ea familia nemo est.
Given into adoption or emancipated, whatever cognations and affinities he had, he retains; the rights of agnation he loses. But in that household to which he comes through adoption, no one is a cognate to him except the father and those to whom he becomes agnate; moreover, in that household no one at all is an affine to him.
Iuris consultus cognatorum gradus et adfinium nosse debet, quia legibus hereditates et tutelae ad proximum quemque adgnatum redire consuerunt: sed et edicto praetor proximo cuique cognato dat bonorum possessionem: praeterea lege iudiciorum publicorum contra adfines et cognatos testimonium inviti dicere non cogimur.
A jurisconsult ought to know the degrees of cognates and of affines, because by the laws inheritances and tutelages are accustomed to revert to the nearest agnate; but also by the edict the praetor gives possession of the goods to the nearest cognate; moreover, by the law of public trials we are not compelled, if unwilling, to give testimony against affines and cognates.
Nam quotiens quaeritur, quanto gradu quaeque persona sit, ab eo incipiendum est cuius de cognatione quaerimus: et si ex inferioribus aut superioribus gradibus est, recta linea susum versum vel deorsum tendentium facile inveniemus gradus, si per singulos gradus proximum quemque numeramus: nam qui ei, qui mihi proximo gradu est, proximus est, secundo gradu est mihi: similiter enim accedentibus singulis crescit numerus. idem faciendum in transversis gradibus: sic frater secundo gradu est, quoniam patris vel matris persona, per quos coniungitur, prior numeratur.
For whenever it is asked in what degree each person is, one must begin from him whose cognation we are inquiring about: and if he is from the inferior or superior degrees, along the straight line tending upward or downward we shall easily find the degrees, if we count each nearest by single degrees: for he who is nearest to him who is in the degree next to me is in the second degree to me; for likewise the number increases as the single steps are approached. The same must be done in the transverse degrees: thus a brother is in the second degree, since the person of the father or mother, through whom he is conjoined, is counted first.
Brother is also understood through either parent, that is, either through the mother only or through the father or through both, that is, from both the same parents. But this does not increase the number, because here he differs in nothing from one who has the same father only, except that he has the same cognates both paternal and maternal: and therefore it is wont to happen in those who are born of different parents, that one who is a brother to my brother is not my cognate. Suppose I have a brother from the same father only, and that he has one from the same mother: they are brothers among themselves; to me the other is not a cognate.
Tertio gradu personae continentur triginta duo. proavus, qui quadrifariter intellegitur: est enim avi paterni aut materni pater, item aviae paternae aut aviae maternae pater. proavia quoque quattuor personas complectitur: est enim aut avi paterni aut aviae paternae mater, item avi materni et similiter aviae maternae mater.
In the third degree there are comprised thirty-two persons. The great-grandfather, who is understood fourfold: for he is the father of the paternal or maternal grandfather, likewise the father of the paternal grandmother or of the maternal grandmother. The great-grandmother also embraces four persons: for she is the mother of the paternal grandfather or of the paternal grandmother, likewise of the maternal grandfather and similarly the mother of the maternal grandmother.
a paternal uncle is the father’s brother, and he himself is to be understood in a twofold way, either through the father or through the mother. if my paternal grandmother married your father and bore you, or your paternal grandmother married my father and bore me, I am your paternal uncle and you are mine. this happens if the women each marries the other’s son: for the males born from these unions are paternal uncles to each other in turn; the females are paternal aunts to each other in turn; likewise, the males are in like manner paternal uncles to the females, and the females are paternal aunts to them.
if a man and that woman: he should lead her daughter in marriage, she should marry his son: those who will be born from the father of the youth will have, as brother’s-children, those born from the mother of the girl; those will call them paternal uncles and aunts (patruuses and amitae). An avunculus is the mother’s brother, in the same signification as we said obtained in the case of a patruus. if two men should each take the other’s daughter, the males born from them will be mutual avunculi, the females mutual materterae, and by the same reasoning the males will be avunculi to the girls and those women will be materterae to them.
an amita is the father’s sister, as is to be understood above. a matertera is the mother’s sister likewise as above. it must be noted that, not, just as the father’s and mother’s brothers and sisters are called patrui and amitae, avunculi and materterae, so the sons and daughters of a brother and of a sister have a special name of kinship; rather, they are indicated thus: the sons and daughters of a brother and of a sister—which indeed also occurs in other cases, as will appear from what follows.
Quarto gradu personae continentur octoginta. abavus, cuius intellectus in octo personas porrigitur: est enim proavi paterni aut materni pater, quos singulos duplici modo intellegendos diximus, aut proaviae paternae aut maternae pater, quae et ipsae singulae dupliciter accipiuntur. abavia: et haec octies numeratur: est enim proavi paterni aut materni, item proaviae paternae aut maternae mater.
In the fourth degree eighty persons are contained. the great-great-grandfather, whose conception extends to eight persons: for he is the father of the paternal or maternal great-grandfather, each of whom we have said is to be understood in a twofold way, or the father of the paternal or maternal great-grandmother, which likewise each are taken in a twofold way. the great-great-grandmother: and she too is counted eight times: for she is the mother of the paternal or maternal great-grandfather, and likewise the mother of the paternal or maternal great-grandmother.
A great patruus (great-uncle) is the brother of a grandfather: since “grandfather,” and likewise “brother,” are understood in two ways, this name embraces four persons, namely the brother of a paternal or of a maternal grandfather, who was born either from the same father, that is, the great-grandfather, or only from the same mother, that is, the great-grandmother: and the one who is to me a great patruus is a patruus (paternal uncle) to my father or to my mother. A great amita (great-aunt) is the sister of a grandfather: but “grandfather,” and likewise “sister,” as we said above, are understood in two ways, and therefore here too we understand four persons: likewise, she who is an amita (paternal aunt) to my father or to my mother will be to me a great amita (great-aunt). A great avunculus (great-uncle) is the grandmother’s brother: four persons are subject to this name by the same reasoning; and he is to me a great avunculus who is an avunculus (maternal uncle) to my father or to my mother.
the great-aunt is the grandmother’s sister: this too is understood in four ways for the same reason: she who is the matertera of my father or of my mother is called my great-aunt. in the same degree are also those who are called fratres patrueles, likewise sorores patrueles, amitini amitinae, consobrini consobrinae: these, moreover, are those who are born from brothers or sisters. some have distinguished them thus, that those who are born from brothers are fratres patrueles, likewise those who are born from brothers are called sorores patrueles; but from a brother and a sister, amitini amitinae; while those, male and female, who are born from sisters, consobrini consobrinae, as if “consororini”: but most call all these consobrini, as Trebatius does.
Under this appellation of names there fall these sixteen persons: the son of a paternal uncle, and likewise the daughter, are counted in two ways as above (for my father’s brother can be either by the same father only, or also by the same mother only): the son of a paternal aunt, and likewise the daughter: the son of a maternal uncle, and likewise the daughter: the son of a maternal aunt, and likewise the daughter, with “paternal aunt,” “maternal uncle,” and “maternal aunt” taken in a double understanding according to the same rationale. The nephew and niece of a brother and of a sister are in the same degree: but also “brother,” and likewise “sister,” and “nephew” and “niece,” when taken in a double way, will comprise sixteen persons thus.
of a brother born from the same father, a grandson by a son, a grandson by a daughter; of a brother born from the same mother, from another father, a grandson by a son, a grandson by a daughter; of a brother born from the same father, a granddaughter by a son, a granddaughter by a daughter; of a brother born from another father, the same mother, a granddaughter by a son, a granddaughter by a daughter; and by the same rationale eight persons will be produced, so that another eight are added from a sister, the grandsons and granddaughters of those born from a sister, and they are counted by us in like manner. however, my brother’s grandson and granddaughter call me a great paternal uncle; the grandsons and granddaughters of my sisters and brothers, and likewise my own, are cousins among themselves. a great-great-grandson, a great-great-granddaughter: these are the son and daughter of a great-grandson or great-granddaughter, the grandson or granddaughter of a grandson or granddaughter, the great-grandson or great-granddaughter of a son or daughter, the grandson—whether born from a son or from a daughter—and the granddaughter—whether born from a son or from a daughter—being understood, so that we may descend by degree to each person thus.
son grandson great-grandson great-great-grandson son grandson great-grandson great-great-granddaughter son grandson great-granddaughter great-great-grandson son grandson great-granddaughter great-great-granddaughter son granddaughter great-grandson great-great-grandson son granddaughter great-grandson great-great-granddaughter son granddaughter great-granddaughter great-great-grandson son granddaughter great-granddaughter great-great-granddaughter likewise these persons will be enumerated, with the daughter set forth, and thus there will be sixteen.
Quinto gradu personae continentur centum octaginta quattuor. atavus scilicet et atavia: atavus est abavi vel abaviae pater, proavi vel proaviae avus, avi aviaeque proavus, patris vel matris abavus: huius appellatio personas complectitur sedecim, enumeratione facta tam per mares quam per feminas, ut sic ad singulas perveniamus. pater avus proavus abavus atavus pater avus proavus abavia atavus pater avus proavia abavus atavus pater avus proavia abavia atavus pater avia proavus abavus atavus pater avia proavus abavia atavus pater avia proavia abavus atavus pater avia proavia abavia atavus similiter matris persona proposita enumeratio fiet.
In the fifth degree persons are contained to the number of one hundred eighty-four. namely the atavus and the atavia: the atavus is the father of an abavus or abavia, the grandfather of a proavus or proavia, the great-grandfather of an avus and an avia, the great-great-grandfather (abavus) of the father or mother: this appellation embraces sixteen persons, the enumeration being made both through males and through females, so that thus we may arrive at each. father grandfather great-grandfather great-great-grandfather atavus father grandfather great-grandfather great-great-grandmother atavus father grandfather great-grandmother great-great-grandfather atavus father grandfather great-grandmother great-great-grandmother atavus father grandmother great-grandfather great-great-grandfather atavus father grandmother great-grandfather great-great-grandmother atavus father grandmother great-grandmother great-great-grandfather atavus father grandmother great-grandmother great-great-grandmother atavus likewise, with the person of the mother set forth, the enumeration will be made.
the atavia contains just as many persons, counted by the same method, that is, 16. the patruus maior is the brother of the proavus, the patruus magnus of the father or of the mother: under this name there will be eight persons, and they will be enumerated thus: father grandfather great-grandfather great-great-grandfather brother of the great-grandfather father grandfather great-grandfather great-great-grandmother brother of the great-grandfather father grandmother great-grandfather great-great-grandfather brother of the great-grandfather father grandmother great-grandfather great-great-grandmother brother of the great-grandfather just so many will there be, the mother’s person and her great-grandfather having been set forth. moreover, in enumerating the brother of the great-grandfather we set him before the great-great-grandfather for this reason: because, as we signified above, one will not otherwise arrive at him about whom inquiry is made, unless the passage will be through those from whom he is born.
greater avunculus: he is the brother of the proavia, the great avunculus of the father or mother: by the same enumeration here too we will compute eight persons, with only this changed, that that brother of the proavia be set down. greater amita: she is the sister of the proavus, the great amita of the father or mother: as to the number and exposition of the persons they will be the same, with this changed, that the sister of the proavus be placed at the end. greater matertera: this is the sister of the proavia, the great matertera of the father or mother: the number of persons is the same, so that in the very last the sister of the proavia be placed.
all these, from the elder paternal uncle whom we have listed, some call thus: pro-paternal-uncle, pro-avuncular-uncle, pro-paternal-aunt, pro-maternal-aunt; however I name them thus, they on the contrary point me to the great-grandson or great-granddaughter of a brother or sister. son daughter of a great-uncle: these are the son daughter of a grandfather’s brother, the grandson granddaughter of a great-grandfather or great-grandmother through a son, the cousin (male female) of the father or mother: we will reckon eight persons here also, because “grandfather” and “brother,” as has already been said, are taken in a double way, and therefore the son of the great-uncle makes up four, the daughter as many. son daughter of a great-aunt (paternal): these are the son daughter of a grandfather’s sister, the grandson granddaughter of a great-grandfather great-grandmother through a daughter, the cousin (male female) of the father or mother: the number of persons is the same as above.
the great-uncle’s son daughter: these are the grandmother’s brother’s son daughter, the great-grandfather’s or great-grandmother’s grandson granddaughter through a son, the father’s or mother’s cousin: the number is the same. the great-aunt’s son daughter: these are the grandmother’s sister’s son daughter, the great-grandfather’s great-grandmother’s grandson granddaughter through a daughter, the father’s or mother’s cousin: the computation is the same. the persons whom we have enumerated, from the great-uncle’s son, are, for the one whose kinship is in question, called nearer cousins: for, as Massurius says, the one whom someone calls nearer than a cousin—who is the father’s or mother’s cousin—from that person the son or daughter is named the son or daughter of the cousin.
paternal-uncle’s grandson granddaughter: these are the great‑grandson great‑granddaughter of the paternal grandfather or paternal grandmother, born from a grandson or from a granddaughter by a son, the son or daughter of a first cousin (consobrinus/consobrina): they will comprise eight persons, four for the grandson, four for the granddaughter, because both the paternal-uncle is taken in a double sense and the grandson or granddaughter is duplicated under each of the uncles’ persons. aunt (father’s sister)’s grandson or granddaughter: these are the great‑grandson great‑granddaughter of the paternal grandfather or paternal grandmother, born from a grandson or granddaughter by a daughter, the son or daughter of a first cousin (consobrinus/consobrina): the number is the same. maternal-uncle’s grandson granddaughter: these are the great‑grandson great‑granddaughter of the maternal grandfather or maternal grandmother: the rest is the same as in the paternal‑uncle’s grandson or granddaughter.
To all these, whom we have set forth under the paternal uncle’s grandson/granddaughter, he whose cognation is being inquired about is nearer than a sobrinus; for he is a consobrinus of their father or mother. Brother’s great-grandson or great-granddaughter: these will contain sixteen persons, the brother being taken in a twofold way and the great-grandson and great-granddaughter each in four ways, as we have shown above. Sister’s great-grandson or great-granddaughter likewise comprise sixteen persons.
adnepos adneptis: these are the son or daughter of a great-great-grandson or great-great-granddaughter, the grandson or granddaughter of a great-grandson or great-granddaughter, the great-grandson or great-granddaughter of a grandson or granddaughter, the great-great-grandson or great-great-granddaughter of a son or daughter: under this appellation thirty-two persons will be counted, because the great-great-grandson has sixteen, and the great-great-granddaughter as many.
Sexto gradu continentur personae quadringentae quadraginta octo hae. tritavus: est autem tritavus patris et matris atavus, avi vel aviae abavus, proavi proaviae proavus, abavi vel abaviae avus, atavi vel ataviae pater, dictus quasi tertius avus: personas autem complectitur triginta duo: geminetur enim necesse est numerus, qui in atavo fuit immutatione per singulas personas propter ataviam facta, ut sedecies tritavus intellegatur atavi pater et totiens ataviae. tritavia similiter numerata faciet personas triginta duo.
In the sixth degree there are contained 448 persons, these. tritavus: a tritavus is, moreover, the father’s and mother’s atavus, the grandfather’s or grandmother’s abavus, the great-grandfather’s or great-grandmother’s proavus, the abavus’s or abavia’s avus, the atavus’s or atavia’s father, called as if a third grandfather: it embraces 32 persons: for it is necessary that the number which was in the atavus be doubled, a change having been made for each person on account of the atavia, so that 16 times the tritavus be understood as the father of the atavus and as many times of the atavia. tritavia, reckoned similarly, will make 32 persons.
patruus maximus: he is the brother of the great-great-grandfather, the son of the great-great-great-grandfather and the great-great-great-grandmother, the greater paternal uncle of father or mother: he will contain sixteen persons thus. father grandfather great-grandfather great-great-grandfather great-great-great-grandfather brother of the great-great-grandfather father grandfather great-grandfather great-great-grandfather great-great-great-grandmother brother of the great-great-grandmother of the great-great-grandfather father grandfather great-grandmother great-great-grandfather great-great-great-grandfather brother of the great-great-grandfather father grandfather great-grandmother great-great-grandfather great-great-great-grandmother brother of the great-great-grandmother of the great-great-grandfather father grandmother great-grandfather great-great-grandfather great-great-great-grandfather brother of the great-great-grandfather father grandmother great-grandfather great-great-grandfather great-great-great-grandmother brother of the great-great-grandmother of the great-great-grandfather father grandmother great-grandmother great-great-grandfather great-great-great-grandfather brother of the great-great-grandfather father grandmother great-grandmother great-great-grandfather great-great-great-grandmother brother of the great-great-grandmother of the great-great-grandfather there will be just as many when the mother’s appellation is put forward. avunculus maximus: he is the brother of the great-great-grandmother, the greater maternal uncle of father or mother: and the number is the same and the exposition of the persons the same as above, with this only changed, that you put in place of “brother of the great-great-grandfather” “brother of the great-great-grandmother.”
greatest amita: she is the sister of the abavus, the father’s or the mother’s elder amita; the rest as in the greatest patruus, with only this changed, that where there is the brother of the abavus let the sister of the abavus be set. greatest matertera: she is the sister of the abavia, the father’s or the mother’s elder matertera; the rest as above, only at the end substituting, for “the brother of the abavia” proposed, “the sister of the abavia.” All these, whom we have set down from the greatest patruus, some designate by these names: abpatruus, abavunculus, abamita, abmatertera: and so we too will set these down indifferently.
those whom I, however, call abpatruuses and abavuncles, abamitas and abmaterterae, they point out to me the great-great-grandson of a brother or sister. the son, the daughter of the greater paternal uncle: these are the son, the daughter of the great-grandfather’s brother, the grandson, granddaughter of the great-great-grandfather and great-great-grandmother through the great-grandfather, from a son. under this head there will be sixteen persons, the enumeration being led just as in the fifth degree, when we showed the greater paternal uncle, with only “son” and “daughter” added, since the son of the greater paternal uncle must necessarily comprise as many persons as the greater paternal uncle, that is, 8. with just as many computed from the person of the daughter, that total will be produced which we set above.
the son and daughter of the elder paternal aunt: these are the son and daughter of the great-grandfather’s sister, a grandson and granddaughter of the great-great-grandfather and great-great-grandmother, through the great-grandfather, from a daughter: and here by the same reasoning we will count out the same number of persons. the son and daughter of the elder maternal uncle: these are the son and daughter of the great-grandmother’s brother, a grandson and granddaughter of the great-great-grandfather and great-great-grandmother, through the great-grandmother, from a son. the same enumeration must be made here as in the son and daughter of the elder paternal uncle.
the elder maternal aunt’s son or daughter: these are the great-grandmother’s sister’s son or daughter, a grandson or granddaughter of the great-grandfather or the great-grandmother through the great-grandmother, a grandson or granddaughter through a daughter: as to the number of persons and the exposition, as above. all these, whom we have set forth starting from the great maternal uncle’s son, are cousins to the grandfather or grandmother ^ grandmother^ of the person whose kinship is being inquired, and to their brothers and sisters; but to that same person’s father and mother, and to the brothers and sisters of either of them, they are more nearly cousins (sobrini). a great paternal uncle’s grandson or granddaughter, a great paternal aunt’s grandson or granddaughter, a great maternal uncle’s grandson or granddaughter, a great maternal aunt’s grandson or granddaughter: each single one of these names contains sixty‑four persons: for since the person of the great paternal uncle, for example, is understood in four ways, and that of the grandson in two ways, that number is doubled with the grandson only being counted, and the number which had been doubled is quadrupled; it is also doubled when the granddaughter is reckoned.
and we set forth only the enumeration of one, for example: father grandfather great-grandfather the grandfather’s brother, who is the great-uncle his son his grandson of the same through the son likewise his granddaughter father grandfather great-grandmother the grandfather’s brother, who is the great-uncle his son his grandson of the same through the son likewise his granddaughter father grandfather great-grandfather the grandfather’s brother, who is the great-uncle his daughter his grandson of the same through the daughter likewise his granddaughter father grandfather great-grandmother the grandfather’s brother, who is the great-uncle his daughter his grandson of the same through the daughter likewise his granddaughter just so many, and in the same manner, are set forth with the mother’s name put before, that is, that we reckon the grandsons and granddaughters of the maternal grandfather’s brother. likewise, in the great-aunt on the father’s side, that is, the grandfather’s sister, we shall enumerate the grandsons and granddaughters: and the same in the great-uncle on the mother’s side, that is, the grandmother’s brother: by the same method in the great-aunt on the mother’s side, that is, the grandmother’s sister: from which the whole number is completed as sixty-four. all these are the great‑grandsons and great‑granddaughters of the great‑grandfather or great‑grandmother of the one whose kinship is asked about, and the grandsons and granddaughters of that same one’s grandfather’s or grandmother’s brother or sister: and conversely, of these, the same one’s grandfather grandmother great‑uncle great‑aunt great‑uncle great‑aunt: but the father or mother of the same person, and the brothers and sisters of either of them, will be his own first cousins: he himself is cousin to these, and in turn to him those are cousins one to another.
the paternal uncle’s great-grandson the paternal uncle’s great-granddaughter: these contain eight persons: for of both sexes they make sixteen thus: father grandfather paternal uncle the paternal uncle’s son the same man’s grandson through a son the same man’s great-grandson from a grandson, a son being born likewise a great-granddaughter father grandmother paternal uncle the paternal uncle’s son the same man’s grandson through a son great-grandson from a grandson, a son being born likewise a great-granddaughter father grandfather paternal uncle the paternal uncle’s daughter the same man’s grandson through a daughter great-grandson from a grandson, a daughter being born and a great-granddaughter father grandmother paternal uncle the paternal uncle’s daughter the same man’s grandson through a daughter great-grandson from a grandson, a daughter being born likewise a great-granddaughter father grandfather paternal uncle the paternal uncle’s granddaughter through a son great-grandson from a granddaughter, a son being born likewise a great-granddaughter father grandmother paternal uncle the paternal uncle’s granddaughter through a son great-grandson from a granddaughter, a son being born likewise a great-granddaughter father grandfather paternal uncle the paternal uncle’s granddaughter through a daughter great-grandson from a granddaughter, a daughter being born likewise a great-granddaughter father grandmother paternal uncle the paternal uncle’s granddaughter through a daughter great-grandson from a granddaughter, a daughter being born likewise a great-granddaughter the paternal aunt’s great-grandson the paternal aunt’s great-granddaughter: he too contains just as many persons on the same reasoning, only the paternal aunt taken in place of the paternal uncle. likewise the maternal uncle’s great-grandson great-granddaughter, likewise with the maternal uncle put in place of the paternal uncle. the maternal aunt’s great-grandson great-granddaughter: and here, wherever the paternal uncle was set down and the maternal aunt enumerated, we shall find the same number of persons.
all these are the grandsons or granddaughters of the cousins of the one whose kinship is being inquired about. the great-great-grandson and great-great-granddaughter of a brother and of a sister: they make up sixty-four persons, as can appear from what is written above. great-great-great-grandson, great-great-great-granddaughter: these are the great-great-great-grandson or -granddaughter of a son or daughter; the great-great-grandson or -granddaughter of a grandson or granddaughter; the great-grandson or -granddaughter of a great-grandson or great-granddaughter; the grandson or granddaughter of a great-great-grandson or great-great-granddaughter; the son or daughter of a great-great-grandson or great-great-granddaughter.
these appellations designate 64 persons, for 32 are completed by the great-great-great-great-grandson, and the same number by the great-great-great-great-granddaughter. For from the grandson the number, quadrupled upon itself, makes 32, the grandson himself signifying 2, the great-grandson 4, the great-great-grandson 8, the great-great-great-grandson 16; to these are added the great-great-great-great-grandson and great-great-great-great-granddaughter, the one born from the great-great-great-grandson, the other from the great-great-great-granddaughter. But in each single degree doubling takes place for this reason, because to the males the females are added, from whom each next one is begotten, and they will be counted thus: son grandson great-grandson great-great-grandson great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter grandson great-grandson great-great-grandson great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter son granddaughter great-grandson great-great-grandson great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter granddaughter great-grandson great-great-grandson great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter son grandson great-granddaughter great-great-grandson great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter grandson great-granddaughter great-great-grandson great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter son granddaughter great-granddaughter great-great-grandson great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter granddaughter great-granddaughter great-great-grandson great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter son grandson great-grandson great-great-great-granddaughter great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter grandson great-grandson great-great-granddaughter great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter son grandson great-granddaughter great-great-granddaughter great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter grandson great-granddaughter great-great-granddaughter great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter son granddaughter great-grandson great-great-granddaughter great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter granddaughter great-grandson great-great-granddaughter great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter son granddaughter great-granddaughter great-great-granddaughter great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter granddaughter great-granddaughter great-great-granddaughter great-great-great-grandson great-great-great-great-grandson likewise great-great-great-great-granddaughter son grandson great-grandson great-great-grandson great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter grandson great-grandson great-great-grandson great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter son granddaughter great-grandson great-great-grandson great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter granddaughter great-grandson great-great-grandson great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter son grandson great-granddaughter great-great-grandson great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter grandson great-granddaughter great-great-grandson great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter son granddaughter great-granddaughter great-great-grandson great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter granddaughter great-granddaughter great-great-grandson great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter son grandson great-grandson great-great-granddaughter great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter grandson great-grandson great-great-granddaughter great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter son grandson great-granddaughter great-great-granddaughter great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter grandson great-granddaughter great-great-granddaughter great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter son granddaughter great-grandson great-great-granddaughter great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter granddaughter great-grandson great-great-granddaughter great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter son granddaughter great-granddaughter great-great-granddaughter great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter daughter granddaughter great-granddaughter great-great-granddaughter great-great-great-granddaughter great-great-great-great-grandson likewise great-great-great-great-granddaughter.
Septimo gradu personae continentur mille viginti quattuor hae: tritavi itemque tritaviae pater mater: personas efficiunt centum viginti octo: tritavi enim patres tot sunt quot ipsius tritavi, item eiusdem matres totidem, fiunt sexaginta quattuor: idem numerus tritaviae patris matrisque. atavi ataviae frater sororve: hi sunt tritavi filius filia, abavi abaviaeve patruus avunculus amita matertera, proavi proaviae patruus magnus avunculus magnus amita magna matertera magna, avi aviaeve propatruus proavunculus proamita promatertera, patris vel matris abpatruus abavunculus abamita abmatertera: fiunt personae atavi fratris triginta duo: nam sedecim, quas atavus explet, accedunt totidem propter fratris duplicem personam: necesse est nam sedecim fratres atavi ex patre computentur, sedecim ex matre. similiter atavi sorores triginta duo: fiunt sexaginta quattuor: et totidem ataviae fratris, item sororis.
At the seventh degree the persons contained are one thousand twenty-four, namely these: the father and mother of the tritavi and likewise of the tritaviae: they make one hundred twenty-eight persons: for the fathers of the tritavi are as many as the tritavi themselves, likewise the mothers of the same, they make sixty-four: the same number for the tritavia’s father and mother. The brother or sister of the atavus or atavia: these are the son and daughter of the tritavus; the patruus (paternal uncle), avunculus (maternal uncle), amita (paternal aunt), matertera (maternal aunt) of the abavus or abavia; the patruus magnus (great paternal uncle), avunculus magnus (great maternal uncle), amita magna (great paternal aunt), matertera magna (great maternal aunt) of the proavus or proavia; the propatruus (great-great paternal uncle), proavunculus (great-great maternal uncle), proamita (great-great paternal aunt), promatertera (great-great maternal aunt) of the avus or avia; the abpatruus, abavunculus, abamita, abmatertera of the father or mother: the persons of the brother of the atavus come to thirty-two: for to the sixteen which the atavus makes up, there are added as many on account of the brother’s double person: for it is necessary that sixteen brothers of the atavus be reckoned on the father’s side, sixteen on the mother’s. Similarly the sisters of the atavus are thirty-two: they make sixty-four: and the same number for the atavia’s brother, likewise for the sister.
the son, daughter of the greatest paternal uncle: these are the great-great-great-grandfather’s grandson, granddaughter through a son, the son, daughter of the great-great-grandfather’s brother. the son, daughter of the greatest paternal aunt: these are the great-great-great-grandfather’s grandson, granddaughter through a daughter, the son, daughter of the great-great-grandfather’s sister. the son, daughter of the greatest maternal uncle: these are the great-great-great-grandfather’s grandson, granddaughter through a son, the son, daughter of the great-great-grandmother’s brother.
the son, daughter of the greatest maternal aunt: these are the great-great-great-grandfather’s grandson, granddaughter through a daughter, the great-great-grandmother’s sister’s son, daughter. all these persons, whom we have enumerated from the son of the greatest paternal uncle, are consobrines of the great-grandfather and great-grandmother of him whose cognation is in question, and, to the grandfather and grandmother of that same person, more nearly sobrini. each single appellation contains sixteen persons, because, since the greatest paternal uncle makes sixteen, his son has the same enumeration and so too his daughter; and from all these, which we have included beginning from the son of the greatest paternal uncle, with sixteen taken eight times, the total is 128.
the grandson of the elder paternal uncle comprises 16 persons (for he is the great‑grandson of a great‑great‑grandfather or great‑great‑grandmother); and since the great‑great‑grandfather is counted 8 times, the grandsons, counted twice eight, make up the number written above. likewise the granddaughter of the elder paternal uncle. the grandson and the granddaughter of the elder maternal uncle, by the same reckoning, will complete 32 persons.
To these persons the grandfather and grandmother of him whose cognation is being inquired are nearer than second cousins: father, mother, second cousin (male), second cousin (female). The one whose cognation is in question has been born from a second cousin. This person is defined, by the next-nearest designation, as his parent’s second cousin, as Trebatius says, and he gives this rationale of the name: that the last degrees of cognations become those of second cousins; and thus the son of a second cousin is rightly the “nearest designation.” From that very person the son of this second cousin will be so called; and therefore those who are born from second cousins call one another by the “nearest designation”: for these have no proper name by which they are called among themselves. Great-uncle’s great-grandson, great-granddaughter.
Out of all these, 128 persons are made up, because each appellation completes 16: for, for example, since the great paternal uncle is understood four ways, to the persons of each great paternal uncle the great-grandson, likewise the great-granddaughter, being quadrupled, will render 32 persons; and so many, counted four times, make up that sum which was proposed. Their fathers and mothers are second cousins to him whose cognation is inquired into, and he himself was born from the same, a second cousin (male or female). The great-great-grandson, great-great-granddaughter of a paternal uncle.
each of these single terms contains six tens of persons: for example, the great-grandson of a paternal uncle will be enumerated thus, that, the paternal uncle being taken in a twofold way, the great-grandson is counted four times, and as many times the great-granddaughter, and thus we come to their sons, reckoned sixteen times: by the same reasoning to the daughter: likewise to the others: and through this, from all, the number of persons one hundred twenty-eight will be produced. these are, for the one whose kinship is being inquired into, the grandsons and granddaughters of cousins, and themselves the son and daughter of that one’s greatest paternal uncle, greatest maternal uncle, greatest paternal aunt, greatest maternal aunt, likewise the cousin of the great-grandfather and great-grandmother. the great-grandnephew and great-grandniece of a brother and sister: they comprise one hundred twenty-eight persons.
the son of the great-great-great-grandson, likewise the daughter: the son of the great-great-great-granddaughter, likewise the daughter. these come to 128, because, since the great-great-great-grandson and the great-great-great-granddaughter, as we have shown above, make up 64, their son by the same enumeration—and the daughter just as many—will be counted.
Ut bonorum possessio peti possit unde vir et uxor, iustum esse matrimonium oportet. ceterum si iniustum fuerit matrimonium, nequaquam bonorum possessio peti poterit, quemadmodum nec ex testamento adiri hereditas vel secundum tabulas peti bonorum possessio potest: nihil enim capi propter iniustum matrimonium potest.
In order that bonorum possessio may be sought in the class unde vir et uxor, the marriage must be just (lawful). Moreover, if the marriage has been unjust, by no means can bonorum possessio be sought, just as neither can the inheritance be entered upon from a testament nor can bonorum possessio be sought according to the tablets: for nothing can be taken on account of an unjust marriage.
A freedwoman divorces with her patron unwilling: the Julian Law on the marrying of the orders keeps her in marriage, since it forbids her to marry another when the patron is unwilling. Likewise, the Julian Law on adulteries, unless the divorce has been effected in a certain manner, holds it as not done.
Militi, qui capite puniri meruit, testamentum facere concedendum paulus et menander scribunt eiusque bona intestati, si punitus sit, ad cognatos eius pertinere, si tamen ex militari delicto, non ex communi punitus est.
Paulus and Menander write that to a soldier who has deserved to be punished capitally permission to make a testament should be conceded, and that his goods, as of one intestate, if he has been punished, pertain to his cognates—provided, however, that he has been punished for a military delict, not for a common one.
Servo meo herede instituto dolo feci, ne testamentum mutaretur, eumque postea manumisi: quaesitum est, an actiones ei denegandae essent. respondi: hic casus verbis edicti non continetur. sed aequum est, si dominus dolo fecerit, ne testamentum mutaretur, quo servus eius heres scriptus erat, quamvis manumissus adierit hereditatem, ei denegari, cum etiam emancipato filio denegetur, si pater dolo fecerit, ne testamentum mutaretur.
With my slave instituted as heir, I acted by dolus so that the testament not be changed, and afterwards I manumitted him: the question was raised whether actions ought to be denied to him. I replied: this case is not contained within the words of the edict. But it is equitable that, if the master has acted by dolus so that the testament not be changed, in which his slave had been written as heir, although, once manumitted, he has entered upon the inheritance, the actions be denied to him, since they are also denied to an emancipated son, if the father has acted by dolus so that the testament not be changed.
Utile tempus est bonorum possessionum admittendarum: ita autem utile tempus est, ut singuli dies in eo utiles sint, scilicet ut per singulos dies et scierit et potuerit admittere: ceterum quacumque die nescierit aut non potuerit, nulla dubitatio est, quin dies ei non cedat. fieri autem potest, ut qui initio scierit vel potuerit bonorum possessionem admittere, hic incipiat nescire vel non posse admittere: scilicet si, cum initio cognovisset eum intestatum decessisse, postea quasi certiore nuntio allato dubitare coeperit, numquid testatus decesserit vel numquid vivat, quia hic rumor postea perrepserat. idem et in contrarium accipi potest, ut qui ignoravit initio, postea scire incipiat.
The time is “useful” for the admitting of possessions of goods: and it is useful time in such a way that the individual days in it are useful, namely that on each single day he both knew and was able to admit; but on whatever day he did not know or was not able, there is no doubt that the day does not accrue to him. However, it can happen that one who at the beginning knew or was able to admit the possession of the goods, then begins to not know or to be unable to admit: namely, if, although at the beginning he had recognized that he had died intestate, afterward, as if a more certain message had been brought, he began to doubt whether he had died testate or whether perhaps he is alive, because such a rumor later had spread. The same can be taken in the contrary direction as well, that one who was ignorant at the beginning later begins to know.
Dies bonorum possessionis utiles esse palam est: sed non sessionum numerabuntur, si modo ea sit bonorum possessio, quae de plano peti potuit. quod si ea, quae causae cognitionem pro tribunali desiderat vel quae decretum exposcit, sessiones erunt nobis computandae, quibus sedit is quibusque per ipsum praetorem factum non est, quo minus daret bonorum possessionem.
It is plain that the days for the possession of goods (bonorum possessio) are useful days; but they will not be reckoned by the sessions, provided only that it is a possession of goods which could have been requested de plano. But if it is one which requires a cognizance of the cause pro tribunali, or which calls for a decree, the sessions must be counted by us—those on which he sat, and those on which it was not by the praetor’s own doing that he was prevented from granting the possession of goods.
In bonorum possessione, quae pro tribunali datur, illud quaeritur, si sedit quidem praetor pro tribunali, sed postulationibus non dedit: potest dici tempus ad bonorum possessionem non cedere, cum praeses aliis rebus aut militaribus aut custodiis aut cognitionibus fuerit occupatus.
In the possession of goods which is granted from the tribunal, the question is this: if indeed the praetor sat at the tribunal, but did not give audience to applications, it can be said that time does not run for seeking the possession of goods, since the presiding official was occupied with other matters, whether military, or with guards, or with hearings.
Si venter in possessionem missus sit, bonorum possessionis tempus non cedere sequentibus nequaquam ambigendum est, nec tantum intra centensimum diem, verum etiam quamdiu nasci possit: nam et si natus fuerit, ante ei deferri bonorum possessionem sciendum est.
If the unborn (the womb) has been sent into possession, it is by no means to be doubted that the time for the possession of the estate does not accrue to those next in order, not only within the hundredth day, but even for as long as it may be possible for birth to occur: for even if it is born, it must be understood that the possession of the estate is conferred upon it beforehand.
Filius non solum si tamquam filius, sed et si tamquam adgnatus vel tamquam cognatus ad bonorum possessionem vocatur, annuum spatium habet: sicuti pater, qui filium manumisisset, quamvis ut manumissor bonorum possessionem accipiat, tamen ad bonorum possessionem accipiendam annuum spatium habet.
The son, not only if he is called to the possession of the goods as a son, but also if as an agnate or as a cognate, has a year’s period: just as the father who had manumitted his son, although he receives the possession of the goods as manumissor, nevertheless has a year’s period for receiving the possession of the goods.
Cum filio familias bonorum possessio delata est, dies, quibus certiorare patrem non potest, ut vel iubeat adgnosci bonorum possessionem vel ratam habeat agnitionem bonorum possessionis, non cedunt. fingamus statim primo die, quo fuerit delata, adgnovisse eum bonorum possessionem, certiorare patrem, ut comprobet, non posse, non cedent dies centum: incipient autem cedere, cum certior fieri potuit. praeteritis autem centum diebus frustra ratum habebit.
When the bonorum possession has been conferred upon a filius familias, the days during which he cannot inform his father—so that the father may either order that the bonorum possession be acknowledged or may hold the acknowledgment of bonorum possession as ratified—do not run. Let us suppose that immediately on the first day on which it was conferred he acknowledged the bonorum possession, but cannot apprise his father so that he may approve it: the hundred days do not run; rather, they will begin to run when the father could be informed. But after the hundred days have elapsed, he will ratify in vain.
Quaeri potest, si, cum posset filius petere bonorum possessionem, patre ita absente, ut certiorare eum non possit, vel etiam furente, petere neglexerit, an peti amplius non possit. sed quid noceat non petitam bonorum possessionem, quae, si petita esset, tamen non ante adquireretur, quam pater comprobasset?
It can be asked, if, when the son could seek the possession of the goods, the father being so absent that he cannot be informed, or even insane, he has neglected to seek it, whether it can no longer be sought. But what harm is there in the possession of the goods not having been sought, which, if it had been sought, nevertheless would not be acquired before the father had approved it?
Intestati proprie appellantur, qui, cum possent testamentum facere, testati non sunt. sed et is, qui testamentum fecit, si eius hereditas adita non est vel ruptum vel irritum est testamentum, intestatus non improprie dicetur decessisse. plane qui testari non potuit proprie non est intestatus, puta impubes furiosus vel cui bonis interdictum est: sed hos quoque pro intestatis accipere debemus: eum quoque, qui ab hostibus captus est, quoniam per legem corneliam successio his defertur, quibus deferretur, si in civitate decessisset: nam et eius hereditas fuisse creditur.
Properly, those are called intestate who, although they were able to make a testament, did not make one. But also he who made a testament, if his inheritance has not been entered upon or the testament is broken or void, will not improperly be said to have died intestate. Clearly, one who could not testate is not properly intestate, for instance an impubes (under age), an insane person, or one interdicted from his goods: yet we ought to take these also as intestate: so too one who has been captured by enemies, since by the Lex Cornelia succession is carried to those to whom it would be carried if he had died in the state: for his inheritance too is deemed to have existed.
Quaeri poterit, si ex ea, quae in fideicommissa libertate moram passa est, conceptus et natus sit, an suus patri existat. et cum placeat eum ingenuum nasci, ut est a divis marco et vero et imperatore nostro antonino augusto rescriptum, cur non in totum pro manumissa haec habeatur, ut uxor ducta suum pariat? nec mirum sit, ex serva ingenuum nasci, cum et ex captiva rescriptum sit ingenuum nasci.
It can be asked whether, if someone has been conceived and born from a woman who has suffered delay in a fideicommissary freedom (manumission), he exists as a suus to his father (i.e., a proper heir). And since it is accepted that he is born freeborn, as has been set forth by rescript of the deified Marcus and Verus and of our emperor Antoninus Augustus, why should this woman not be held as wholly manumitted, so that, if taken in marriage, she may bear a suus? Nor is it surprising that a freeborn is born from a slave-woman, since it has been rescripted that a freeborn is born even from a captive.
Wherefore I would dare to say that, even if the father of this boy were of the same condition as his mother—who suffered delay in fideicommissary freedom—and he himself also suffered delay, he is born a suus to his father, by the example of captive parents, with whom he returned. Therefore, whether afterward his father, after the delay, be manumitted, he will receive him into his power; or, if he died earlier, it must be defined that he exists as a suus.
Si filius suus heres esse desiit, in eiusdem partem succedunt omnes nepotes neptesque ex eo nati qui in potestate sunt: quod naturali aequitate contingit. filius autem suus heres esse desinit, si capitis deminutione vel magna vel minore exiit de potestate. quod si filius apud hostes sit, quamdiu vivit nepotes non succedunt.
If a son has ceased to be his own heir, all grandsons and granddaughters born from him who are in his power succeed to that same portion: which happens by natural equity. but a son ceases to be his own heir, if by capitis deminution, whether major or minor, he has gone out of power. but if the son is among the enemy, so long as he lives the grandchildren do not succeed.
Interdum licet parens alicuius in potestate esse non desierit, sed nec coeperit, tamen dicimus succedentes ei liberos suos existere: ut puta adrogavi eum, cuius filius ab hostibus erat captus, nepos autem in civitate: mortuo filio adrogato, mortuo et captivo apud hostes pronepos iste suus heres mihi erit.
Sometimes, although the parent of someone has not ceased to be in potestas, but neither has he even begun to be, nevertheless we say that those who succeed to him become his “own” children (sui): for instance, I adrogated a man whose son had been captured by the enemy, while the grandson was in the city: when the adrogated man has died, and when also the one captured among the enemy has died, this great‑grandson will be my suus heir.
Sciendum est autem nepotes et deinceps interdum, etiamsi parentes eos mortis tempore praecesserunt, tamen posse suos heredes existere, quamvis successio in suis heredibus non sit. quod ita procedit. si pater familias testamento facto decesserit exheredato filio, mox deliberante herede instituto filius decessit, postea deinde repudiavit heres institutus: nepos poterit suus heres esse, ut et Marcellus libro decimo scripsit, quoniam nec delata est filio hereditas.
It must be known, moreover, that grandchildren and thereafter (more remote descendants) sometimes, even if their parents have predeceased them at the time of death, can nevertheless come to be sui heirs, although there is no succession by representation among sui heirs. This proceeds thus: if the paterfamilias, a will having been made, has died with his son disinherited, and soon thereafter, while the instituted heir is deliberating, the son dies, and afterwards the instituted heir repudiated, the grandson will be able to be a suus heres, as Marcellus also wrote in the tenth book, since the inheritance had not even been delated to the son.
the same will have to be said also if the son, for the whole share, under a condition which was in his own discretion, or the grandson, instituted as universal heir, should die with the condition not fulfilled: for it must be said that the sui can succeed, provided only that at the time of the testator’s death they were either in the realm of human affairs or at least conceived; and this pleases both Julian and Marcellus.
Consanguineos autem cassius definit eos, qui sanguine inter se conexi sunt. et est verum eos esse consanguineos, etiamsi sui heredes non extiterunt patri, ut puta exheredatos: sed et si pater eorum deportatus fuerit, nihilo minus eos inter se esse consanguineos, licet patri sui heredes non extitissent: et qui numquam in potestate fuerunt, erunt sibi consanguinei, ut puta qui post captivitatem patris nascuntur vel qui post mortem.
But Cassius defines consanguines as those who are connected to one another by blood. And it is true that they are consanguines, even if they did not become sui heirs to their father, for instance if disinherited; and even if their father has been deported, nonetheless they are consanguines among themselves, although they did not become sui heirs to their father. And those who were never under paternal power will be consanguines to one another, for instance those who are born after the father’s captivity or after his death.
Post consanguineos admittuntur adgnati, si consanguinei non sunt, merito. nam si sunt consanguinei, licet non adierint hereditatem, legitimis non defertur. sed hoc sic erit accipiendum, si nec sperantur esse: ceterum si vel nasci consanguineus vel de captivitate reverti potest, adgnati impediuntur.
After the consanguines, the agnates are admitted, if there are no consanguines—and rightly so. For if there are consanguines, although they may not have entered upon the inheritance, it is not deferred to the legitimi. But this must be understood thus, only if they are not even expected to exist; otherwise, if either a consanguine can be born or can return from captivity, the agnates are impeded.
Adgnati autem sunt cognati virilis sexus ab eodem orti. nam post suos et consanguineos statim mihi proximus est consanguinei mei filius et ego ei: patris quoque frater, qui patruus appellatur: deincepsque ceteri, si qui sunt hinc orti, in infinitum.
Agnates, moreover, are cognates of the male sex sprung from the same source. For after one’s “own” and one’s consanguinei, immediately the nearest to me is the son of my consanguineus, and I to him; likewise my father’s brother, who is called the paternal uncle; and thereafter the others in succession, if any are sprung from this line, to infinity.
Haec hereditas proximo adgnato, id est ei, quem nemo antecedit, defertur, et, si plures sint eiusdem gradus, omnibus, in capita scilicet. ut puta duos fratres habui vel duos patruos, unus ex his unum filium, alius duos reliquit: hereditas mea in tres partes dividetur.
This inheritance is devolved upon the nearest agnate, that is, upon him whom no one precedes; and, if there are several of the same degree, upon all, namely per capita. For instance, I had two brothers or two paternal uncles; one of these left one son, the other left two: my inheritance will be divided into three parts.
Legitima hereditas tantum proximo defertur. nec interest, unus solus sit an ex duobus prior pluribusve an duo pluresve ab eodem gradu venientes, qui vel ceteros antecedant vel soli sint: quia is est proximus quem nemo antecedit, et is ultimus quem nemo sequitur, et interdum idem primus postremusque, qui solus occurrit.
Legitimate inheritance is conveyed only to the nearest. Nor does it matter whether it be one alone, or the one prior out of two or more, or two or more coming from the same degree, who either antecede the rest or are alone: because he is the nearest whom no one antecedes, and he is the last whom no one follows, and sometimes the same person is both first and last, who occurs alone.
Interdum ulteriorem adgnatum admittimus: ut puta fecit quis testamentum, cum haberet patruum et patrui filium, deliberante herede scripto patruus decessit, mox heres institutus repudiavit hereditatem: patrui filius admittetur: ergo et bonorum possessionem petere potest.
Sometimes we admit a more remote agnate: for example, someone made a testament, when he had a paternal uncle and the son of the paternal uncle; while the written heir was deliberating, the paternal uncle died, soon the instituted heir repudiated the inheritance: the son of the paternal uncle will be admitted: therefore he can also seek possession of the goods.
Proximum non eum quaerimus, qui tunc fuit, cum moreretur pater familias, sed eum, qui tunc fuit, cum intestatum decessisse certum est. secundum quae et si suus erat qui praecedebat vel consanguineus, si nemo eorum, cum repudiatur hereditas, vivit, proximum eum accipimus, qui tunc, cum repudiatur hereditas, primus est.
We do not seek as the nearest the one who was such at the time when the paterfamilias died, but the one who was such at the time when it is certain that he deceased intestate. accordingly, even if there was a “suus” who had precedence or a consanguineous kinsman, if none of them is alive when the inheritance is repudiated, we take as the nearest the one who then, when the inheritance is repudiated, is first.
Unde belle quaeri potest, an etiam post repudiationem adhuc demus successionem. propone heredem scriptum rogatum restituere hereditatem repudiasse eam, cum nihilo minus compelli potuit adire hereditatem et restituere, ut divus pius rescripsit: finge eum supervixisse centum diebus verbi gratia et interim proximum decessisse, mox et eum, qui erat rogatus restituere: dicendum posteriorem admitti cum onere fideicommissi.
Whence it can be aptly asked whether even after repudiation we still grant succession. Suppose that a named heir, asked to restore the inheritance, has repudiated it, although nonetheless he could have been compelled to enter upon the inheritance and restore it, as the deified Pius wrote back: imagine that he survived for one hundred days, for example, and in the meantime the nearest successor died, and soon thereafter the one who had been asked to restore also died: it must be said that the later is admitted with the burden of the fideicommissum.
Quid si necem domini detexit et ex senatus consulto libertatem meruerit? si quidem adsignavit praetor, cuius libertus sit, sine dubio eius erit et ei legitima hereditas deferetur: quod si non addidit, efficietur quidem civis romanus, sed eius erit libertus, cuius proxime fuerit servus et ad legitimam hereditatem ipse admittetur, nisi sicubi quasi indigno deneganda fuerit hereditas.
What if he has uncovered the murder of his master and has earned freedom by a senatorial decree? If indeed the praetor has assigned whose freedman he is to be, without doubt he will belong to that man, and to him the legitimate inheritance will be tendered; but if he has not added this, he will indeed become a Roman citizen, yet he will be the freedman of him whose slave he most recently was, and he himself will be admitted to the legitimate inheritance, unless in some case the inheritance ought to be denied as to one, as it were, unworthy.
Si quis libertam sic iureiurando adegit " ne illicite nubat", non debere incidere in legem aeliam sentiam. sed si " intra certum tempus ne ducat" " neve aliam, quam de qua patronus consenserit" vel " non nisi collibertam" aut " patroni cognatam", dicendum est incidere eum in legem aeliam sentiam nec ad legitimam hereditatem admitti.
If someone has thus compelled a freedwoman by an oath, "that she not marry illicitly," he ought not to fall under the Lex Aelia Sentia. But if "that she not marry within a certain time," or "nor anyone other than one about whom the patron has consented," or "only a fellow-freedwoman," or "a kinswoman of the patron," it must be said that he falls under the Lex Aelia Sentia and is not admitted to the legitimate inheritance.
Utique et ex lege duodecim tabularum ad legitimam hereditatem is qui in utero fuit admittitur, si fuerit editus. inde solet remorari insequentes sibi adgnatos, quibus praefertur, si fuerit editus: inde et partem facit his qui pari gradu sunt, ut puta frater unus est et uterus, vel patrui filius unus natus et qui in utero est.
Surely also by the law of the Twelve Tables, to the legitimate inheritance he who was in the womb is admitted, if he is brought forth. From this he is wont to delay the agnates next after him, over whom he is preferred, if he is brought forth: from this also he makes a share for those who are in the same degree, as, for instance, there is one brother and another in the womb, or there is one son of a paternal uncle born and one who is in the womb.
Est autem tractatum, pro qua partem faciat, quia ex uno utero plures nasci possunt. et placuit, si in rerum natura certum sit hanc, quae se dicit praegnatem, praegnatem non esse, ex asse iam esse heredem hunc, qui iam natus est, quoniam et ignorans heres fit. quare si medio tempore decesserit, integram hereditatem ad heredem suum transmittit.
It has, moreover, been discussed for what share he should take, since from one womb several can be born. And it has been decided that, if it is certain in the nature of things that she who says she is pregnant is not pregnant, the one who is already born is now heir of the whole (ex asse), since even one who is unaware becomes heir. Therefore, if he should die in the meantime, he transmits the entire inheritance to his own heir.
Si quis, cum haberet fratrem et patruum, decesserit testamento facto, deinde pendente condicione heredum scriptorum frater intestato decesserit, mox condicio defecerit: patruum posse utriusque adire legitimam hereditatem constat.
If someone, when he had a brother and a paternal uncle, has died with a testament made, then, while the condition of the instituted heirs is pending, the brother has died intestate, and soon the condition has failed: it is settled that the paternal uncle can enter upon the legitimate inheritance of both.
Titius exheredato filio extraneum heredem sub condicione instituit: quaesitum est, si post mortem patris pendente condicione filius uxorem duxisset et filium procreasset et decessisset, deinde condicio instituti heredis defecisset, an ad hunc postumum nepotem legitima hereditas avi pertineret. respondit: qui post mortem avi sui concipitur, is neque legitimam hereditatem eius tamquam suus heres neque bonorum possessionem tamquam cognatus accipere potest, quia lex duodecim tabularum eum vocat ad hereditatem, qui moriente eo, de cuius bonis quaeritur, in rerum natura fuerit,
Titius, having disinherited his son, instituted a stranger heir under a condition: it was asked, if after the father’s death, while the condition was pending, the son had taken a wife and had begotten a son and had died, then the condition of the instituted heir had failed, whether the legitimate inheritance of the grandfather would pertain to this posthumous grandson. He answered: one who is conceived after the death of his grandfather can receive neither his legitimate inheritance as an own heir nor possession of the goods as a cognate, because the law of the 12 Tables calls to the inheritance him who, at the dying of the one concerning whose goods the question is, was in being (in rerum natura),
Item praetor edicto suo proximitatis nomine bonorum possessionem pollicetur his, qui defuncto mortis tempore cognati fuerint. nam quod in consuetudine nepotes cognati appellantur etiam eorum, post quorum mortem concepti sunt, non proprie, sed per abusionem vel potius anaforikws accidit.
Likewise the praetor, by his edict, promises possession of the goods under the name of proximity to those who shall have been cognates at the time of the deceased’s death. For the fact that in common usage grandchildren are called cognates even of those after whose death they were conceived happens not properly, but by abuse, or rather anaphorically.
Si quis praegnatem uxorem reliquisset et matrem et sororem, si viva uxore mater mortua fuisset, deinde uxor mortuum peperisset, ad sororem solam legitima hereditas pertinet, quia certum esset matrem eo tempore decessisse, quo legitima hereditas ad eam non pertinebat.
If someone had left a pregnant wife and a mother and a sister, and if, while the wife was alive, the mother had died, and then the wife had borne a dead child, the legitimate inheritance pertains to the sister alone, because it would be certain that the mother died at a time at which the legitimate inheritance did not pertain to her.
Si ex pluribus legitimis heredibus quidam omiserint adire hereditatem vel morte vel qua alia ratione impediti fuerint, quo minus adeant, reliquis, qui adierint, adcrescit illorum portio et licet decesserint, antequam adcresceret, hoc ius ad heredes eorum pertinet. alia causa est instituti heredis et coheredi substituti: huic enim vivo defertur ex substitutione hereditas, non etiam, si decesserit, heredem eius sequitur.
If out of several lawful heirs some have omitted to enter upon the inheritance, or have been prevented from entering by death or by any other reason, the share of those accrues to the rest who have entered; and although they have died before it accrued, this right pertains to their heirs. The case is different with an instituted heir and with one substituted to a coheir: for to this man, while alive, the inheritance is conferred by the substitution, but if he has died, it does not follow his heir.
Capitis deminutione pereunt legitimae hereditates, quae ex lege duodecim tabularum veniunt, sive vivo aliquo sive antequam adeatur hereditas eius capitis minutio intercessit, quoniam desinit suus heres vel adgnatus recte dici: quae autem ex legibus novis aut ex senatus consultis, non utique.
By capitis deminution, the legitimate inheritances which come from the Law of the Twelve Tables perish, whether the capitis deminution intervened while someone was alive or before his inheritance is entered upon, since he ceases to be rightly called a suus heir or an agnate; but those which arise from newer laws or from decrees of the senate, not necessarily.
Si pater apud hostes moriatur, defunctum iam in civitate filium credimus patrem familias decessisse, quamvis patria potestate, quamdiu vixerit, non fuerit in plenum liberatus: itaque heredem habiturus est iste non reverso patre. sed si postliminio redierit pater iam defuncto filio, quidquid medio tempore per eum quaesitum est, habebit: et non est mirum, si peculium quoque defuncti pridem filii defertur patri, cum ex eo natus potestatis ipsius fiat per suspensi iuris constitutionem.
If a father dies among the enemy, we consider the son, already within the commonwealth, to have the paterfamilias deceased, although by paternal power, so long as he lived, he had not been fully liberated: accordingly, this man will be going to have an heir, the father not having returned. But if by postliminium the father returns after the son has already died, whatever in the meantime was acquired through him, he will have; and it is not surprising if the peculium too of the son who died some time before is conveyed to the father, since one born from him becomes under his power by the constitution of suspended law.
Pater instrumento dotali comprehendit filiam ita dotem accepisse, ne quid aliud ex hereditate patris speraret: eam scripturam ius successionis non mutasse constitit: privatorum enim cautiones legum auctoritate non censeri.
The father in the dotal instrument included that the daughter had so received a dowry that she should expect nothing else out of the father’s inheritance: it is established that that writing did not alter the right of succession: for the stipulations of private persons are not deemed to have the authority of laws.
Si ea sit mater, de cuius statu dubitatur, utrum mater familias sit an filia familias, ut puta quoniam pater eius ab hostibus captus sit: si certum esse coeperit matrem familias esse, liberi admittentur. unde tractari potest, an medio tempore, dum status pendet, succurri eis per praetorem debeat, ne, si medio tempore decesserint, nihil ad heredem transmittant: et magis est, ut subveniatur, ut in multis casibus placuit.
If the mother be one whose status is in doubt, whether she is a mater familias or a filia familias, for instance because her father has been captured by the enemy: if it comes to be certain that she is a mater familias, the children will be admitted. Whence it can be discussed whether in the meantime, while the status is pending, aid ought to be afforded them through the praetor, lest, if in the meantime they should die, they transmit nothing to an heir: and the sounder view is that relief be afforded, as has been approved in many cases.
Interdum et in servitute quaesito erit concedenda hereditas legitima, veluti si post moram fideicommissariae libertati matris suae factam natus sit. certe si post manumissionem matris fuerit natus, licet in servitute conceptus, ad legitimam eius hereditatem admittetur. sed et si apud hostes conceptus a captiva procreatus cum ea rediit, secundum rescriptum imperatoris nostri et divi patris eius ad ovinium tertullum poterit ex hoc senatus consulto admitti quasi vulgo quaesitus.
Sometimes even to one begotten in servitude the legitimate inheritance must be conceded, for example if he was born after a postponement had been made to his mother’s fideicommissary liberty. Certainly, if he was born after the mother’s manumission, although conceived in servitude, he will be admitted to her legitimate inheritance. But also, if conceived among the enemy and begotten from a captive woman, he returned with her, then according to the rescript of our emperor and of his deified father to Ovinius Tertullus, he can, by this senatus consultum, be admitted as though commonly-begotten (vulgo quaesitus).
Filio, qui mortis tempore matris civis romanus fuit, si ante aditam hereditatem in servitutem deducatur, legitima hereditas non defertur nec si postea liber factus sit, nisi forte servus poenae effectus beneficio principis sit restitutus.
For a son who was a Roman citizen at the time of his mother’s death, if, before entering upon the inheritance, he is reduced into slavery, the legitimate inheritance is not conferred, nor even if thereafter he has been made free, unless perhaps, having become a penal slave, he has been restored by the emperor’s favor.
Sed si matris exsecto ventre filius editus sit, magis dicendum est hunc quoque ad legitimam hereditatem admitti: nam et institutus secundum tabulas et ab intestato unde cognati et multo magis unde legitimi bonorum possessionem petere potuit: argumento est, quod venter in possessionem ex omni parte edicti mittitur.
But if a son has been brought forth with the mother’s belly cut open, it is rather to be said that he too is to be admitted to the legitimate inheritance: for he could seek bonorum possessio both as an instituted heir according to the tablets, and ab intestato under the heading “whence the cognates,” and much more under “whence the legitimi.” It is evidence for this that the womb is put into possession under every part of the edict.
Qui operas suas ut cum bestiis pugnaret locavit quive rei capitalis damnatus neque restitutus est, ex senatus consulto orphitiano ad matris hereditatem non admittebatur: sed humana interpretatione placuit eum admitti. idem erit dicendum et si hic filius in eius sit potestate, qui in causa supra scripta sit, posse eum ex orphitiano admitti.
One who let out his services so as to fight with beasts, or who has been condemned on a capital charge and has not been restored, was not admitted, by the Senatus consultum Orphitianum, to the mother’s inheritance; but by a humane interpretation it has been decided to admit him. The same must be said also if this son is in the power of one who is in the case written above, that he can be admitted under the Orphitian decree.
Sed si mater testamento facto filium heredem scripserit unum sub condicione, cum plures haberet, si condicione pendente possessionem petierit et postea condicio defecit, aequum est ceteris etiam filiis legitimam hereditatem non auferri: quod et papinianus libro sexto decimo quaestionum scripsit.
But if a mother, having made a testament, has written one son as heir under a condition, when she had several, if, with the condition pending, she sought possession and thereafter the condition failed, it is equitable that the legitimate inheritance not be taken away from the other sons as well: which also papinianus wrote in book 16 of the questions.
Capitis minutio salvo statu contingens liberis nihil nocet ad legitimam hereditatem: nam vetus sola hereditas, quae lege duodecim tabularum defertur, capitis minutione peremitur, novae vel ex lege vel ex senatus consultis delatae non peremuntur capitis deminutione. proinde sive quis ante delatam capite minuatur, ad legitimam hereditatem admittetur, nisi magna capitis deminutio interveniat, quae vel civitatem adimit, ut puta si deportetur.
A diminution of status (capitis deminutio) occurring with one’s status preserved, befalling children, does no harm with respect to a legitimate inheritance: for only the old inheritance, which is conferred by the Law of the Twelve Tables, is destroyed by a capitis deminutio; inheritances of the new type, whether granted by law or by senatorial decrees (senatus consulta), are not destroyed by a capitis deminutio. Accordingly, whether someone is diminished in status before the inheritance is delated, he will be admitted to the legitimate inheritance, unless a great diminution of status intervenes, which even takes away citizenship, as, for instance, if he is deported.
" si nemo filiorum eorumve, quibus simul legitima hereditas defertur, volet ad se eam hereditatem pertinere, ius antiquum esto". hoc ideo dicitur, ut, quamdiu vel unus filius vult legitimam hereditatem ad se pertinere, ius vetus locum non habeat: itaque si ex duobus alter adierit, alter repudiaverit hereditatem, ei portio adcrescet. et si forte sit filius et patronus, repudiante filio patrono defertur.
" if none of the sons, or of their descendants, to whom at the same time the legitimate inheritance is conferred, is willing for that inheritance to pertain to himself, let the ancient law be in force". This is said for this reason, that, so long as even a single son wishes the legitimate inheritance to pertain to himself, the old law shall not have place: and so, if out of two one has entered upon it and the other has repudiated the inheritance, a portion will accrue to him. And if by chance there is both a son and a patron, with the son repudiating, it is conferred upon the patron.
Si quis adita matris hereditate per in integrum restitutionem fuerit abstentus, an ius antiquum possit locum habere? verba admittunt, ut possit: " volet ad se", inquit, " eam hereditatem pertinere": nam et hic non vult, etsi aliquando voluit: et dico posse ius antiquum locum habere.
If anyone, after the mother’s inheritance has been entered upon, has been kept away from it through restitutio in integrum, can the ancient law have place? The words admit that it can: "he shall wish that that inheritance pertain to himself," he says; for even here he does not wish it, although at some time he did wish; and I say that the ancient law can have place.
Utrum autem ei defertur successio, qui tunc legitimus deprehenditur, an vero ei, qui tunc fuit, cum filio defertur? ut puta proponamus fuisse defunctae consanguineum eiusque filium, deliberante filio defunctae consanguineum obisse, mox filium repudiasse matris hereditatem: an consanguinei filius admitti possit? et iulianus recte putat circa tertullianum locum esse succedenti adgnato.
Whether, moreover, the succession is tendered to him who is then discovered to be the legitimate heir, or rather to him who was such at the time when it is tendered to the son? For instance, let us propose that there was a consanguine of the deceased and his son; while the son is deliberating, the consanguine of the deceased dies; soon the son repudiates the mother’s inheritance: can the consanguine’s son be admitted? And Julian rightly thinks that, as regards the Tertullian locus, the agnate who succeeds takes.
Quod ait senatus: " quae iudicata transacta finitave sunt, rata maneant", ita intellegendum est, ut " iudicata" accipere debeamus ab eo cui iudicandi ius fuit, " transacta" scilicet bona fide, ut valeat transactio, " finita" vel consensu vel longo silentio sopita.
What the senate says: " which things have been adjudicated, transacted, or finished, let them remain ratified", is to be understood in this way: that " adjudicated" we ought to take as from him who had the right of judging, " transacted", namely in good faith, so that the transaction may be valid, " finished" either by consent or lulled by long silence.
Sed si in servitute concepit filium et manumissa ediderit, ad legitimam eius hereditatem admittetur: idemque et si serva poenae concepit et restituta edidit: hoc idem et si libera concepit, edidit serva poenae, mox restituta est: sed et si libera concepit et in servitutem redacta edidit, mox manumissa est, ad legitimam hereditatem eius admittetur. item si adhuc praegnas manumissa est, dicendum erit prodesse. et in servitute editi filii ad legitimam hereditatem mater admittetur, ut puta si post moram factam in fideicommissa libertate peperit, vel apud hostes et cum eo rediit, vel si redempta edidit.
But if she conceived a son in servitude and, having been manumitted, bore him, she will be admitted to his legitimate inheritance: and the same if a slave-by-penalty conceived and, upon being restored, bore: the same likewise if she conceived free, bore as a slave-by-penalty, and was soon restored: but also if she conceived free and, having been reduced into servitude, bore, and was soon manumitted, she will be admitted to his legitimate inheritance. Likewise, if, while still pregnant, she was manumitted, it must be said that this is to her benefit. And as to sons born in servitude, the mother will be admitted to their legitimate inheritance, for instance, if, after a delay has been made, she gave birth in fideicommissary freedom, or among the enemies and returned with him, or if, having been ransomed, she bore.
Impuberem, cui pater secundas tabulas fecit, tunc certum est intestatum decessisse, cum omiserint substituti hereditatem eius. quare et si impubes adrogatus sit, dicendum est matrem ad bona eius admitti, quae haberet, si intestatus decessisset.
An impubes, for whom the father made second tablets, is then certain to have died intestate, when the substitute heirs have omitted his inheritance. Wherefore, even if the impubes has been adrogated, it must be said that the mother is to be admitted to his goods, which she would have if he had died intestate.
Liberi defuncti sui quidem obstabunt matri eius tam virilis sexus quam feminini, tam naturales quam adoptivi matremque excludunt, bonorum possessores vero etiam non sui et quidem soli naturales. adoptivi autem liberi post emancipationem ita admittuntur, si ex liberis naturalibus fuerint, ut puta nepos naturalis ab avo adoptatus: nam licet sit emancipatus, bonorum possessione accepta matri obstabit.
The deceased’s children who are sui will indeed stand in the way of his mother—both of male sex and of female, both natural and adoptive—and they exclude the mother; but those who obtain possession of the goods, even if they are not sui, and indeed only the natural ones, [do so]. And adoptive descendants after emancipation are admitted on this footing, if they are from natural children, as, for example, a natural grandson adopted by his grandfather: for although he is emancipated, upon the bonorum possessio being accepted, he will stand in the way of the mother.
Sed si sint sui heredes, verum hereditas ad eos non pertineat, videamus, an mater admittatur, ut puta abstinuit se hereditate. africanus et publicius temptant dicere in casum, quo se abstinent sui, matrem venire, et tunc ei obstent, quotiens rem haberent, ne nudum nomen sui heredis noceat matri: quae sententia aequior est.
But if there are sui heirs, yet the inheritance does not pertain to them, let us see whether the mother is admitted, for instance they have abstained from the inheritance. africanus and publicius attempt to say that, in the case in which the sui abstain, the mother comes in, and that then they stand in her way whenever they would have the thing, lest the bare title of a sui heir harm the mother: which opinion is the more equitable.
Sed si quis decessisset relicta filia, quam in adoptionem legitime dederat, relicta et matre, divus pius decrevit cessare senatus consultum tertullianum et simul esse admittendas ad bonorum possessionem unde proximi cognati matrem et filiam. sed quod idem iulianus scripsit matrem ex senatus consulto non posse admitti, si filia in bonorum possessione petenda cessaverit, verum non erit: succedit enim filiae. et ideo dicendum erit matrem, donec filia bonorum possessionem petere potest, bonorum possessionem accipere non posse, quoniam succedere quasi legitima speraretur.
But if someone had died leaving a daughter whom he had lawfully given into adoption, and also leaving the mother, the deified Pius decreed that the Tertullian senatus consultum should cease to apply, and that the mother and the daughter alike be admitted to the bonorum possessio “whence the nearest cognates.” But what the same Julian wrote—that the mother cannot be admitted under the senatus consultum, if the daughter has failed in petitioning for bonorum possessio—will not be true: for she succeeds to the daughter. And therefore it must be said that the mother, so long as the daughter is able to petition for bonorum possessio, cannot receive bonorum possessio, since she is expected to succeed as it were a legitimate [heir].
Si quis ex liberis, dum est in utero, in possessione missus sit, mox natus sit et ante bonorum possessionem acceptam decesserit, an matri noceat, videndum, quasi bonorum possessor. et puto non nocere, si non suus patri adgnascitur: neque enim sufficit mitti in possessionem, nisi natus quoque acceperit bonorum possessionem. igitur et si furioso decreto petita sit possessio et priusquam ipse mentis compos factus bonorum possessionem petierit, decesserit, matri non obstabit.
If any one of the children, while he is in the womb, has been put into possession, is soon born and dies before the possession of the goods has been accepted, it must be considered whether this harms the mother, as if he were a possessor of the goods. And I think it does not harm, if he is not born as a suus to the father: for it does not suffice to be put into possession, unless, when born, he also has accepted the possession of the goods. Therefore, likewise, if possession has been sought by decree on behalf of a madman, and before he himself, having become of sound mind, has petitioned for the possession of the goods, he has died, it will not stand in the mother’s way.
Sed si quis, cum status controversiam pateretur, carbonianam solam acceperit, an noceat matri bonorum possessio, quaesitum quidem est: sed cum haec tempore finiatur, dicendum est matri post tempus non nocere aut, si impubes decesserit, matrem posse admitti.
But if someone, while undergoing a controversy of status, has accepted only the Carbonian bonorum possessio, the question has indeed been raised whether the bonorum possessio harms the mother; but since this is ended by a time-limit, it must be said that it does not harm the mother after the period, or, if he has died under age, that the mother can be admitted.
Ita demum autem mater senatus consulti beneficio excludetur, si filius adiit legitimam hereditatem: ceterum si omiserit legitimam hereditatem, mater ex senatus consulto tertulliano admittetur. sed si non sit solus iste filius legitimus heres, sed sint qui cum eo admittantur, nec in partem eorum mater ex senatus consulto erit vocanda.
Only then, however, will the mother be excluded from the benefit of the senatus consultum, if the son has entered upon the legitimate inheritance: but if he has omitted the legitimate inheritance, the mother will be admitted under the Tertullian senatus consultum. But if this son is not the sole legitimate heir, but there are those who are admitted with him, the mother, under the senatus consultum, is not to be called into their share.
Obicitur matri pater in utriusque bonis tam filii quam filiae, sive heres sive bonorum possessor existat. sed neque avus neque proavus in tertulliano matri nocent, quamvis fiduciam contraxerint. pater autem tantum naturalis, non etiam adoptivus matri nocet: verius est enim, cum pater esse desierit, a matre eum excludi: sed nec ad bonorum possessionem contra tabulas eum admitti, cum pater esse desierit.
The father is set up against the mother in the goods of both son and daughter, whether he be heir or possessor of the goods. But neither the grandfather nor the great-grandfather prejudice the mother under the Tertullianum, although they have entered into a fiducia. Only the natural father, however, not also the adoptive, harms the mother: for it is truer that, when he has ceased to be a father, he is to be excluded by the mother; nor is he to be admitted to the possession of the goods contrary to the will, when he has ceased to be a father.
Si sit consanguinea soror defuncti, sit et mater, sit et pater adoptatus vel emancipatus: si consanguinea velit habere hereditatem, matrem ex senatus consulto una cum ea venire, patrem excludi placet: si consanguinea repudiet, matrem ex senatus consulto propter patrem non venire: et quamvis alias non soleat mater exspectare consanguineam, velit nec ne adire hereditatem, nunc tamen exspectaturam: consanguinea enim est, quae patrem excludit. repudiante igitur consanguinea bonorum possessionem habebit mater cum patre quasi cognata, sed et in hac moram patietur nec ante accipiet bonorum possessionem quam pater petierit, quoniam omittente eo potest ex senatus consulto succedere.
If there is a consanguine sister of the deceased, and there is also the mother, and there is also a father adopted or emancipated: if the consanguine sister wishes to have the inheritance, it is decided that the mother comes in together with her by senatus consultum, and that the father is excluded. If the consanguine sister renounces, the mother, by senatus consultum, does not come in because of the father. And although otherwise the mother is not accustomed to await the consanguine sister—whether she wishes or not to enter upon the inheritance—yet now she will have to wait; for it is the consanguine sister who excludes the father. Therefore, the consanguine sister renouncing, the mother will have possession of the goods together with the father, as though a cognate; but even in this she will suffer delay, and she will not receive possession of the goods before the father has applied, since, if he omits it, she can, by senatus consultum, succeed.
Sed et si ipsa mater eadem sit et soror consanguinea, ut puta quoniam pater matris nepotem suum ex filia adoptavit, sit praeterea et pater naturalis: haec mater si quidem quasi consanguinea veniat, excludet patrem: si ius consanguineae repudiavit vel capitis deminutione amisit, ex senatus consulto venire propter patrem non potest, repudiante vero patre rursum ex senatus consulto potest venire.
But also, if the mother herself be likewise a consanguine sister, for instance because the mother’s father adopted his own grandson from his daughter, and there is, moreover, a natural father: this mother, if indeed she comes as, so to speak, a consanguine sister, will exclude the father; if she has repudiated the right of a consanguine sister or has lost it by capitis deminutio (diminution of status), by senatorial decree she cannot come on account of the father, but the father repudiating, again by senatorial decree she can come.
Quod autem diximus ius antiquum servari matre non adeunte, cui personae deferatur hereditas, videndum, utrum ei, quae nunc proxima invenitur, cum mater repudiat, an ei quae fuit, cum intestato decessisse certum est? ut puta fuit patruus, cum intestato decederet, et patrui filius: cum mater repudiasset, patruo nondum delatam hereditatem atque ideo defuncto eo matre deliberante patrui filium vocari.
But as to what we said, that the ancient law is preserved with the mother not entering, it must be considered to what person the inheritance is deferred: whether to the one who is now found to be nearest when the mother repudiates, or to the one who was [nearest] at the time when it is certain that he died intestate. For instance, there was a paternal uncle when he died intestate, and the paternal uncle’s son; when the mother had repudiated, the inheritance had not yet been deferred to the paternal uncle; and therefore, the uncle having died while the mother was deliberating, the paternal uncle’s son is called.
Si mater non petierit tutores idoneos filiis suis vel prioribus excusatis reiectisve non confestim aliorum nomina ediderit, ius non habet vindicandorum sibi bonorum intestatorum filiorum. et quidem si non petit, incidit: ait enim " vel non petere". sed a quo non petere? loquitur quidem de praetore constitutio: sed puto et in provinciis locum habere, etiamsi a magistratibus municipalibus non petat, quoniam et magistratibus municipalibus dandi necessitas iniungitur.
If a mother has not requested suitable guardians for her sons, or, when the former have been excused or rejected, has not forthwith produced the names of others, she does not have the right to vindicate to herself the goods of her intestate sons. And indeed, if she does not request, she incurs it; for it says, "or not to request." But from whom not to request? The constitution indeed speaks of the praetor; but I think it has place also in the provinces, even if she does not petition the municipal magistrates, since upon the municipal magistrates too the necessity of appointing is enjoined.
" confestim" autem sic erit accipiendum " ubi primum potuit", id est praetoris copiam habuit huic rei sedentis, nisi forte infirmitate impedita est vel alia magna causa, quae etiam mandare eam ad petendos tutores impediret: ita tamen, ut nullo modo annale tempus excederet. si enim mortalitate filii praeventa est, nihil matri imputetur.
" at once" however will thus be understood, " as soon as she was able," that is, she had access to the praetor sitting for this matter, unless perchance she was impeded by infirmity or by some other great cause, which would even hinder her from giving a mandate to petition for guardians: yet in such a way that in no manner should the annual period be exceeded. For if she was forestalled by the mortality of the son, nothing is to be imputed to the mother.
Tractari belle potest, si pupillo amplum legatum sub condicione sit relictum " si tutores non habuerit" et propterea ei mater non petierit, ne condicione deficeretur, an constitutio cesset. et puto cessare, si damnum minus sit cumulo legati. quod et in magistratibus municipalibus tractatur apud tertullianum: et putat dandam in eos actionem, quatenus plus esset in damno quam in legato.
It can be neatly handled, if to a ward an ample legacy has been left under the condition “if he should not have tutors,” and for that reason his mother has not petitioned for them, lest the condition fail, whether the constitution should cease. And I think it does cease, if the damage is less than the total of the legacy. This also is treated concerning municipal magistrates with Tertullianus: and he thinks that an action should be given against them, insofar as there would be more in the damage than in the legacy.
Unless perhaps someone thinks that this condition, as though opposing the public utility, ought to be remitted, as very many others are; or, caviling at the wording, has imputed to the mother why she did not seek curators. But suppose moreover the condition had been drafted more fully: would not pardon be due to the mother? Or is this imputed to the mother, why she did not desire the condition to be remitted by the emperor?
Et si forte quis uxorem communis filii matrem heredem scripsit rogavitque remissa etiam satisdatione, ut filio puberi facto restitueret hereditatem, nec mater ei petiit tutores, debet dici cessare constitutionem, cum patris voluntatem secuta sit et nihil habenti filio tutores non petierit. quod si ei remissa satisdatio non fuerit, contra erit, quoniam vel propter hoc debuit tutores habere. sed si forte impubes post matris cessationem fuerit adrogatus et impubes obierit, dicendum erit matri adversus adrogatorem non competere ex stipulatu actionem.
And if perchance someone appointed as heir his wife, the mother of their common son, and requested also, the requirement of security being remitted, that she restore the inheritance when the son had become of age, and the mother did not ask guardians for him, it ought to be said that the constitution is inapplicable, since she followed the father’s will and did not ask guardians for a son who possessed nothing. But if the security had not been remitted to her, the contrary will hold, since for this very reason he ought to have had guardians. But if perchance the underage boy, after the mother’s inaction, was adrogated and died underage, it must be said that an action ex stipulatu does not lie for the mother against the adrogator.
Videndum est, matre prohibita ius suum vindicare utrum ceteros admittamus, atque si mater non esset, an ipsam heredem dicimus fieri vel aliud nomen successionis induere, sed denegamus ei actiones? et invenimus rescriptum ab imperatore nostro antonino augusto et divo patre eius mammiae maximinae pridie idus apriles plautiano iterum consule matre remota eos admitti, qui venirent, si mater non fuisset: ergo et adgnati ceterique succedent aut, si nemo sit, bona vacabunt.
It must be considered, with the mother prohibited from vindicating her right, whether we admit the others, and, as if the mother did not exist, do we say that she herself becomes heir or assumes some other name of succession, but we deny her the actions? And we find a rescript by our emperor Antoninus Augustus and by his deified father, to Mammia Maximina, on the day before the Ides of April, Plautianus being consul for the second time, that, the mother being set aside, those are admitted who would come if the mother had not been: therefore the agnates and the rest will succeed, or, if there is no one, the estate will lie vacant.
Si ex filio nepotem avus manumiserit isque patre et avo et matre superstitibus decesserit, potest quaeri, quis potior esse debeat. nam si mater excluserit avum manumissorem, qui patri anteponitur, edicto praetoris inducetur pater defuncti, quo admisso desinit senatus consulto locus esse et rursus avus vocabitur. itaque rectius est avo ius suum conservare, qui et contra scriptos heredes bonorum possessionem accipere solet.
If a grandfather has manumitted a grandson born from his son, and he has died with his father, grandfather, and mother surviving, it can be asked who ought to be preferred. For if the mother excludes the manumitting grandfather, who is set before the father, by the praetor’s edict the father of the deceased will be introduced; once he is admitted, there is no longer room for the senatorial decree, and the grandfather will in turn be called. Therefore it is more correct for the grandfather to preserve his own right, since he is also accustomed to receive possession of the estate (bonorum possessio) against heirs named in the will.
Filius, qui se nolle adire hereditatem matris dixit, an potest mutata voluntate adire, antequam consanguineus vel adgnatus adierit, videndum propter haec verba " si nemo filiorum volet hereditatem suscipere", quia extensiva sunt. et cum verba extensiva sint, paenitentia eius usque ad annum admittenda est, cum et ipsa filii bonorum possessio annalis est.
A son who has said that he is unwilling to enter upon his mother’s inheritance—whether he can, with his will changed, enter before a consanguine or an agnate has entered—must be considered because of these words, "if none of the sons will wish to undertake the inheritance," since they are extensive. And since the words are extensive, his repentance is to be admitted up to a year, since the son’s very bonorum possession is annual.
Si filius familias miles non sit testatus de his, quae in castris adquisierit, an ea ad matrem pertineant, videndum est. sed non puto: magis enim iudicio militum hoc beneficium concessum est, non ut omnimodo quasi patres familiarum in ea re sint.
If a filius familias soldier has not made a testament concerning those things which he has acquired in camp, it must be considered whether these pertain to the mother. But I do not think so; for this beneficium was granted out of regard for soldiers, not so that in every respect they should be as if patres familiarum in that matter.
Quando in pendenti est, an quaedam personae possint obstare matri, et casus tulerit, ut non inducerentur, matris ius integrum erit, quod medio tempore appenderit: veluti si filio intestato mortuo postumus ei filius potuerit nasci nec natus sit aut mortuus editus, vel quod etiam filius qui in hostium potestate erat postliminio non sit reversus.
When it is pending whether certain persons can obstruct the mother, and the event has brought it about that they are not introduced, the mother’s right will be intact, which in the meantime had hung in suspense: for example, if, a son having died intestate, a posthumous son could have been born to him but is not born, or is brought forth dead, or also because a son who was in the power of the enemy has not returned by postliminium.