De liberis et postumis heredibus instituendis vel exheredandis
(Concerning the appointment and disinheritance of children and posthumous heirs.)
1 Ulpianus libro primo ad Sabinum. Quid sit nominatim exheredari, videamus. nomen et praenomen et cognomen eius dicendum est an sufficit vel unum ex his? et constat sufficere.
1 Ulpianus, On Sabinus, Book I. Let us consider what is meant by the term “specific disinheritance.” Must the name, the title, and the surname be mentioned, or will it be sufficient for any of them to be stated? It is established that it is sufficient for one of them to be mentioned.
2 Idem libro sexto regularum. Nominatim exheredatus filius et ita videtur ‘filius meus exheres esto’, si nec nomen eius expressum sit, si modo unicus sit: nam si plures sunt filii, benigna interpretatione potius a plerisque respondetur nullum exheredatum esse.
2 The Same, Rules, Book VI. It is held that a son is specifically disinherited in the following words, “Let my son be disinherited”, even if his name is not expressly stated, where the testator has only one son; for where he has several, the opinion is entertained by most authorities, in accordance with the more beneficent interpretation, that none of the sons will be disinherited.
3 Idem libro primo ad Sabinum. Et si pepercerit filium dicere, ex Seia autem natum dixit, recte exheredat: et si cum convicio dixerit ‘non nominandus’ vel ‘non filius meus’, ‘latro’, ‘gladiator’, magis est, ut recte exheredatus sit, et si ex adultero natum dixerit. 1Pure autem filium exheredari Iulianus putat, qua sententia utimur. 2Filius inter medias quoque heredum institutiones recte exheredatur et erit a toto gradu summotus, nisi forte ab unius persona eum testator exheredaverit: nam si hoc fecit, vitiosa erit exheredatio. quemadmodum si ita eum exheredaverit ‘quisquis heres mihi erit, filius exheres esto’: nam, ut Iulianus scribit, huiusmodi exheredatio vitiosa est, quoniam post aditam hereditatem voluit eum summotum, quod est inpossibile. 3Ante heredis institutionem exheredatus ab omnibus gradibus summotus est. 4Inter duos autem gradus exheredatus ab utroque remotus est secundum Scaevolae sententiam, quam puto veram. 5In eo, qui miscuit duos gradus, exheredationem valere Mauricianus recte putat, veluti: ‘Primus heres esto ex semisse. si Primus heres non erit, Secundus ex semisse heres esto. Tertius ex alio semisse heres esto. filius exheres esto. si Tertius heres non erit, Quartus heres esto’: nam ab utroque gradu summotus est. 6Si ita testatus sit pater familias, ut a primo quidem gradu filium praeteriret, a secundo solo exheredaret, Sabinus et Cassius et Iulianus putant perempto primo gradu testamentum ab eo gradu exordium capere, unde filius exheredatus est: quae sententia comprobata est.
3 The Same, On Sabinus, Book I. Where the testator does not mention his son by name, but merely states that he was born of Seia, he legally disinherits him. And if he should refer to him in terms of reprobation, as, for example: “He who is not to be mentioned by me”; or “He who is not my son, who is a robber and a gladiator”; the better opinion is that the son is legally disinherited. The same rule applies where he refers to him as born of adulterous intercourse. 1Julianus thinks that a son should be unconditionally disinherited, which opinion we have adopted. 2The son can be legally disinherited between the separate appointments of two heirs, and, in this instance, he will be removed from every degree of inheritance, unless the testator should have disinherited him as only one of his heirs; for if he does this, the disinheritance will be defective, just as if he had expressed himself in the following terms: “Whoever my son will be, I disinherit him.” For (as Julianus says) a disinheritance of this kind is defective, since the testator desires his son to be excluded after he has entered upon the estate, which is impossible. 3A son who is disinherited before the appointment of an heir is excluded from all degrees. 4In accordance with the opinion of Scævola, which I think to be correct, where a son is disinherited between two degrees of inheritance, he is excluded from both. 5Mauricianus properly holds that where two degrees of succession are mingled, the act of disinheritance will be valid, for example: “I appoint the first heir to half of my estate; if there is no first heir, the second heir shall inherit half of my estate, and the third the other half. I disinherit my son if there is no third heir, and I appoint the fourth in his stead”; for the son is, in this instance, excluded from every degree. 6Where a father executes a will in such a way as to pass over his son in the first degree, and disinherits him only in the second, Sabinus, Cassius, and Julianus hold that the first degree having been disposed of, the will begins to be operative from that degree from which the son was disinherited. This opinion should be approved.
4 Idem libro tertio ad Sabinum. Placet omnem masculum posse postumum heredem scribere, sive iam maritus sit sive nondum uxorem duxerit: nam et maritus repudiare uxorem potest et qui non duxit uxorem, postea maritus effici. nam et cum maritus postumum heredem scribit, non utique is solus postumus scriptus videtur, qui ex ea quam habet uxorem ei natus est, vel is qui tunc in utero est, verum is quoque, qui ex quacumque uxore nascatur:
4 The Same, On Sabinus, Book III. It is established that every man can appoint a posthumous child his heir, whether he is married or not. For, indeed, a husband can repudiate his wife, and one who has not contracted marriage can subsequently do so; and where a husband appoints a posthumous heir, it is held that this does not only apply to a child who is born of the present wife of the testator, but also to one who is unborn, and indeed may be born of any wife whomsoever.
5 Iavolenus libro primo ex Cassio. ideoque qui postumum heredem instituit si post testamentum factum mutavit matrimonium, is institutus videtur, qui ex posteriore matrimonio natus est.
5 Javolenus, On Cassius, Book I. Therefore, where a man has appointed a posthumous heir, and, after the execution of the will, marries again, he is held to have been appointed who is the issue of the subsequent marriage.
6 Ulpianus libro tertio ad Sabinum. Sed est quaesitum, an is, qui generare facile non possit, postumum heredem facere possit, et scribit Cassius et Iavolenus posse: nam et uxorem ducere et adoptare potest: spadonem quoque posse postumum heredem scribere et Labeo et Cassius scribunt: quoniam nec aetas nec sterilitas ei rei impedimento est. 1Sed si castratus sit, Iulianus Proculi opinionem secutus non putat postumum heredem posse instituere, quo iure utimur. 2Hermaphroditus plane, si in eo virilia praevalebunt, postumum heredem instituere poterit.
6 Ulpianus, On Sabinus, Book III. The question arose whether a man who has not complete power of reproduction can appoint a posthumous heir. Cassius and Javolenus say that he can do so, because he can marry and adopt children. Labeo and Cassius state that one who is temporarily impotent can also appoint a posthumous heir, since in this instance neither age nor sterility can be considered as impediments. 1Where, however, the individual in question has been castrated, Julianus, following the opinion of Proculus, does not think that he can appoint a posthumous heir. This is the modern practice. 2An hermaphrodite can appoint a posthumous heir, if the male organs predominate in his physical conformation.
7 Paulus libro primo ad Sabinum. Si filius qui in potestate est praeteritus sit et vivo patre decedat, testamentum non valet nec superius rumpetur, et eo iure utimur.
7 Paulus, On Sabinus, Book I. If a son who is under paternal control should be passed over in his father’s will, and die during the lifetime of the latter, the will is not valid, and where there is a former one, it will not be broken. This is also the rule at the present time.
8 Pomponius libro primo ad Sabinum. Si Primo herede instituto filium exheredavero, a Secundo autem substituto non exheredavero et, dum pendet, an prior aditurus sit, filius decesserit, secundum sententiam qua utimur non erit Secundus heres, quasi ab initio inutiliter institutus, cum ab eo filius exheredatus non sit. quod si in postumo filio idem acciderit, ut natus vivo patre a quo exheredatus sit moriatur, eadem dicenda erunt de substituto, quoniam cum est natus filius, loco eius est, qui superstes est.
8 Pomponius, On Sabinus, Book I. If I disinherit my son by the appointment of an heir in the first degree, but do not disinherit him from the second degree of substitution, and if, while the first heir appointed is hesitating whether he will enter upon the estate or not, the son should die, the second heir, according to the rule which we have adopted, will have no rights under the will on account of having been improperly appointed in the beginning, since the son was not disinherited from the second degree. If this should occur in the case of a posthumous child, so that it is born during the lifetime of the father, by whom it was disinherited, and it should afterwards die, the same rule must be held to apply with reference to the substituted heir, since when this child was born he occupied the place of the one who survived.
9 Paulus libro primo ad Sabinum. Si quis postumos, quos per aetatem aut valetudinem habere forte non potest, heredes instituit, superius testamentum rumpitur, quod natura magis in homine generandi et consuetudo spectanda est quam temporale vitium aut valetudo, propter quam abducatur homo a generandi facultate. 1Sed si ex ea, quae alii nupta sit, postumum quis heredem instituerit, ipso iure non valet, quod turpis sit institutio. 2Si filium exheredavero nepotemque ex eo praeteriero et alium heredem instituero et supervixerit filius post mortem meam, licet ante aditam hereditatem decesserit, non tamen nepotem rupturum testamentum Iulianus et Pomponius et Marcellus aiunt. diversumque est, si in hostium potestate filius sit et decesserit in eodem statu: rumpit enim his casibus nepos testamentum, quod moriente avo fili ius pependerit, non abscisum ut superiore casu fuerit. sed et si heres institutus omiserit hereditatem, erit legitimus heres, quoniam haec verba ‘si intestato moritur’ ad id tempus referuntur, quo testamentum destituitur, non quo moritur. 3Sed si ex ea, quam nefas sit ducere, postumum heredem instituero, non putat rumpi testamentum Pomponius. 4Sed si per adoptionem sororem factam habeam, potero postumum ex ea heredem instituere, quia adoptione soluta possum eam ducere uxorem.
9 Paulus, On Sabinus, Book VII. Where anyone who, on account of age or ill health, cannot have children, appoints posthumous heirs, a former will is broken, because the nature of man and the capacity for procreation must rather be considered than a temporary defect or illness, by reason of which a man is deprived of the power of generation. 1Where, however, a man appoints a posthumous child as his heir who is to be born of the wife of another, the appointment will not be valid in law, for the reason that it is dishonorable. 2If I disinherit my son, and pass over my grandson born to said son, and appoint another person my heir, and my son survives, even though he should die before my estate is entered upon, my grandson cannot, nevertheless, break my will; so Julianus, Pomponius, and Marcellus hold. The case is different where my son is in the hands of the enemy and dies there, for my grandson in this instance can break my will, since, when his grandfather died, the right of the son was in suspense, and was not extinguished, as in the former instance. Where, however, the appointed heir rejects the estate, the grandson will be the lawful heir, as these words, “If he should die intestate”, have reference to the time when the will ceased to be valid, and not to that when the party died. 3But where I appoint a posthumous heir to be born of a woman whom it is wrong to marry, Pomponius does not think that the will is broken. 4If I have an adopted sister, I can appoint her posthumous child my heir, for the reason that if the adoption is annulled I can marry her.
10 Pomponius libro primo ad Sabinum. Commodissime is qui nondum natus est ita heres instituitur: ‘sive vivo me sive mortuo natus fuerit, heres esto’, aut etiam pure neutrius temporis habita mentione. si alteruter casus omissus fuerit, eo casu qui omissus sit natus rumpit testamentum, quia hic filius nec sub condicione quidem scriptus heres intellegitur, qui in hunc casum nascitur, qui non est testamento adprehensus.
10 Pomponius, On Sabinus, Book I. A child that is yet unborn may very conveniently be appointed an heir, in the following terms: “If, during my lifetime or after my death, a child should be born to me, I appoint him my heir”; or this may be done absolutely, without making mention of either time. If either of these contingencies is omitted, and the child is born, so far as the one which is omitted is concerned the will will be broken, because the said child is not understood to have been born subject to the condition under which it was appointed heir by the will.
11 Paulus libro secundo ad Sabinum. In suis heredibus evidentius apparet continuationem dominii eo rem perducere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo domini existimantur. unde etiam filius familias appellatur sicut pater familias, sola nota hac adiecta, per quam distinguitur genitor ab eo qui genitus sit. itaque post mortem patris non hereditatem percipere videntur, sed magis liberam bonorum administrationem consequuntur. hac ex causa licet non sint heredes instituti, domini sunt: nec obstat, quod licet eos exheredare, quod et occidere licebat.
11 Paulus, On Sabinus, Book II. In the case of proper heirs, it is perfectly evident that a continuation of ownership legally remains, so that there appears to be no succession; since those should be held to be the owners of the estate who, during the lifetime of their father, were already considered to occupy that position. Wherefore, the son of a family is so called, just as a father is styled the father of a family, so that it is only by the prefix that the parent is distinguished from the child. Hence, after the death of the father, the children are not considered to have obtained the inheritance, but rather to have acquired the free administration of the property. For this reason they are owners, even though they have not been appointed heirs, for there is no reason why he should not possess the right of disinheriting those whom he formerly had the right to put to death.
12 Ulpianus libro nono ad Sabinum. Quod dicitur filium natum rumpere testamentum, natum accipe et si exsecto ventre editus sit: nam et hic rumpit testamentum, scilicet si nascatur in potestate. 1Quid tamen, si non integrum animal editum sit, cum spiritu tamen, an adhuc testamentum rumpat? et tamen rumpit.
12 Ulpianus, On Sabinus, Book IX. When it is said that the birth of a child breaks a will, the term “birth” must be understood to also apply where it has been taken from its mother’s womb by means of a surgical operation. For in this case a child breaks a will, provided it is born under paternal control. 1But what if the child should be born deformed, but still of sound mind; would the will be broken in this instance? It must be held that it would be.
13 Iulianus libro vicesimo nono digestorum. Si ita scriptum sit: ‘si filius mihi natus fuerit, ex besse heres esto: ex reliqua parte uxor mea heres esto. si vero filia mihi nata fuerit, ex triente heres esto: ex reliqua parte uxor heres esto’, et filius et filia nati essent, dicendum est assem distribuendum esse in septem partes, ut ex his filius quattuor, uxor duas, filia unam partem habeat: ita enim secundum voluntatem testantis filius altero tanto amplius habebit quam uxor, item uxor altero tanto amplius quam filia: licet enim suptili iuris regulae conveniebat ruptum fieri testamentum, attamen cum ex utroque nato testator voluerit uxorem aliquid habere, ideo ad huiusmodi sententiam humanitate suggerente decursum est, quod etiam Iuventio Celso apertissime placuit. 1Regula est iuris civilis, qua constitutum est hereditatem adimi non posse: propter quam liber et heres esse iussus, quamvis dominus ademerit eodem testamento libertatem, nihilo minus et libertatem et hereditatem habebit. 2Testamentum, quod hoc modo scribitur: ‘Titius post mortem filii mei heres esto: filius exheres esto’ nullius momenti est, quia filius post mortem suam exheredatus est: quare et contra tabulas paternorum libertorum huiusmodi filius bonorum possessionem accipere poterit.
13 Julianus, Digest, Book XXIX. The following was set forth in a will: “If a child should be born to me, I appoint him heir to two-thirds of my estate, and I appoint my wife heir to the remaining third; if, however, a daughter should be born to me, I appoint her an heir to one-third of my estate, and my wife to the remaining two-thirds.” In case both a son and daughter are born, it must be held that the estate should be divided into seven parts, out of which the son should be entitled to four, the wife to two, and the daughter to one portion. Thus, in compliance with the will of the testator, the son should have twice as much as the wife, and the wife twice as much as the daughter, and although, according to the strict rule of law, it might be held that the will was broken; still, as the testator desired that his wife should have something in case either of the children mentioned should be born, recourse was had to this interpretation through motives of humanity, and it was also clearly accepted by Juventius Celsus. 1It has been established by a rule of the Civil Law that an estate once granted cannot be taken away; wherefore, in case a slave is directed to become free and an heir, even though his master should deprive him of freedom by the same will, he shall, nevertheless, be entitled to both his freedom and the estate. 2When a will is framed in the following terms: “Let Titius be my heir, after the death of my son, and I disinherit my son”; it is of no effect, because the son is disinherited after the death of the testator, and for this reason he can obtain possession of the estate in opposition to the wills of the freedmen of his father.
14 Africanus libro quarto quaestionum. Si postumus a primo gradu exheredatus, a secundo praeteritus sit, quamvis eo tempore nascatur, quo ad heredes primo gradu scriptos pertineat hereditas, secundum tamen gradum vitiari placet ad hoc, ut praetermittentibus institutis ipse heres existat. immo et si defuncto eo heredes instituti omiserint hereditatem, non posse substitutos adire. itaque et si a primo gradu exheredatus, a secundo praeteritus, a tertio exheredatus sit et viventibus primis et deliberantibus decedat, quaeri solet omittentibus primis aditionem utrum ad eos, qui tertio gradu scripti sint, an potius ad legitimos heredes pertineat hereditas. quo et ipso casu rectius existimari putavit ad legitimos eam pertinere: nam et cum duobus heredibus institutis et in singulorum locum facta substitutione a primis exheredatus postumus, a secundis praeteritus fuerit, si alter ex institutis omiserit, quamvis postumus excludatur, non tamen magis substitutum admitti. 1Quod vulgo dicitur eum gradum, a quo filius praeteritus sit, non valere, non usquequaque verum esse ait: nam si primo gradu heres institutus sit filius, non debere eum a substitutis exheredari: ideoque si filio et Titio heredibus institutis Titio Maevius substitutus sit, omittente Titio hereditatem Maevium eam adire posse, quamvis filius secundo gradu exheredatus non sit. 2Si quis ita scripserit: ‘ille, quem scio ex me natum non esse, exheres esto’, hanc exheredationem ita nullius momenti esse ait, si probetur ex eo natus: non enim videri quasi filium exheredatum esse. cum elogium pater, cum filium exheredaret, proposuisset et adiecisset propter eam causam exheredare, probaturque patrem circa causam exheredationis errasse.
14 Africanus, Questions, Book IV. Where a posthumous child has been disinherited in the first degree, and passed over in the second, even though it was born at the time when the estate belonged to heirs appointed in the first degree, it is held that the will is broken with reference to the second degree, so that if the heirs who have been appointed fail to enter upon the estate, it itself will become the heir. Nay more, if the heirs who have been appointed fail to enter upon the estate after its death, the substituted heirs cannot do so. So if the posthumous child who was disinherited in the first degree, passed over in the second, and disinherited in the third, should die while the first heirs are deliberating whether they will accept the estate or not, it may be asked if the first ones should reject the estate, whether it will belong to those who are appointed in the third degree, or to the heirs-at-law. In this instance it is also held to be more equitable that it should belong to the heirs-at-law. For in a case where two heirs have been appointed and substitution has been made for each of them, and the posthumous child has been disinherited in the first degree, and passed over in the second, if either of the appointed heirs should not accept the estate—even though the posthumous child may have been excluded—still the substituted heir cannot be admitted. 1While it is commonly asserted that the rule having reference to a degree in which a child is passed over is not valid, this is not true in every instance; for if a son has been appointed heir in the first degree, he should not be disinherited in the substitution. Therefore, where a son and Titius have been appointed heirs, and Mævius was substituted for Titius, Titius having refused the estate, Mævius can enter upon it, even though the son may not have been disinherited in the second degree. 2If anyone should make the following statement in his will: “I disinherit So-and-So, whom I know is not my son”; a clause of this kind will be of no force or effect, where it is proved that the party referred to is the son of the testator; for a son is not held to have been disinherited merely because his father spoke disparagingly of him at the time, and added that he disinherited him for this reason, and it is proved that the father was mistaken with reference to his motive for disinheriting him.
15 Ulpianus libro primo ad Sabinum. Idem est et si ita dixerit: ‘ille illius filius exheres esto’, patrem ei adulterum per errorem adsignans.
15 Ulpianus, On Sabinus, Book I. The same rule applies if the testator should have said: “I disinherit So-and-So, the son of So-and-So,” attributing an adulterous father to him through mistake.
16 Africanus libro quarto quaestionum. Si filius heres institutus sit omisso postumo filioque substitutus nepos ex eo sit, si interim moriatur filius, postumo non nato nepotem tam patri quam avo suum heredem futurum. quod si nemo filio substitutus sit et solus ipse institutus sit, tunc quia eo tempore, quo is moriatur, certum esse incipit neminem ex eo testamento heredem fore, ipse filius intestato patri heres existet: sicut evenire solet, cum sub ea condicione quae in ipsius potestate erit, filius heres institutus, prius quam ei pareret, moriatur.
16 Africanus, Questions, Book IV. Where a son is appointed heir by his father, who passes over a posthumous child, and his grandson who is the son of the said heir is afterwards substituted for him, and the son, in the meantime, dies, and the posthumous child should not be born, the said grandson will be the heir of both his father and grandfather. Where, however, no one is substituted for the son, and he alone is appointed heir, then, for the reason that, at the time when the son died, it begins to be certain that there will be no heir under the will, the son himself will become the heir of his father if the latter dies intestate; just as frequently happens where a son who is under the control of his father is appointed heir under some condition, and dies before he has complied with it.
17 Florentinus libro decimo institutionum. Filii etiam hoc modo exheredantur ‘filius exheres sit’: ‘filius exheres erit’.
17 Florentinus, Institutes, Book X. Sons can also be disinherited in the following terms: “Let my son be disinherited”; “My son shall be disinherited.”
18 Ulpianus libro quinquagesimo septimo ad edictum. Multi non notae causa exheredant filios nec ut eis obsint, sed ut eis consulant, ut puta impuberibus, eisque fideicommissam hereditatem dant.
18 Ulpianus, On the Edict, Book LVII. Many fathers disinherit their children not on account of any disgrace or to do them injury, but with a view to their own welfare (as, for instance, those who have not arrived at puberty), and bequeath their estates to them in trust.
19 Paulus libro primo ad Vitellium. Cum quidam filiam ex asse heredem scripsisset filioque, quem in potestate habebat, decem legasset, adiecit ‘et in cetera parte exheres mihi erit’, et quaereretur, an recte exheredatus videretur, Scaevola respondit non videri, et in disputando adiciebat ideo non valere, quoniam nec fundi exheres esse iussus recte exheredaretur, aliamque causam esse institutionis, quae benigne acciperetur: exheredationes autem non essent adiuvandae.
19 Paulus, On Vitellius, Book I. A certain man appointed his daughter sole heir to his estate, and bequeathed ten aurei to his son, who was under his control, and added: “My son shall be disinherited so far as the remainder of my estate is concerned.” The question arose whether he could be held to be legally disinherited. Scævola answered that he did not seem to be properly disinherited, and, while discussing the point, added that the disinheritance was void, for a child could not be legally disinherited when this only had reference to a certain tract of land; and that the case was different where anyone is appointed an heir, for the reason that appointments are understood to be subject to the most liberal interpretation, but no encouragement should be given to disinheritances.
20 Modestinus libro secundo pandectarum. Sub condicione filius heres institutus si pendente condicione adrogandum se dedit, necessarius heres non erit.
20 Modestinus, Pandects, Book II. Where a son is appointed an heir under some condition, and while the condition is pending gives himself to be arrogated, he will cease to be a necessary heir.
21 Pomponius libro secundo ad Quintum Mucium. Si filium nominatim exheredavero et eum postea heredem instituero, heres erit.
21 Pomponius, On Quintus Mucius, Book II. If I should disinherit my son by name and afterwards appoint him my heir, he will be my heir.
22 Terentius Clemens libro septimo decimo ad legem Iuliam et Papiam. Cum postumus sub condicione instituitur, si prius quam nascatur condicio exstiterit, non rumpitur testamentum postumi adgnatione.
22 Terentius Clemens, On the Lex Julia et Papia, Book XVII. When a posthumous child is appointed an heir under some condition, and the condition is fulfilled before he is born, the will will not be broken by the birth of the said posthumous child.
23 Papinianus libro duodecimo quaestionum. Filio, quem pater post emancipationem a se factam iterum adrogavit, exheredationem antea scriptam nocere dixi: nam in omni fere iure sic observari convenit, ut veri patris adoptivus filius numquam intellegatur, ne imagine naturae veritas adumbretur, videlicet quod non translatus, sed redditus videretur: nec multum puto referre, quod ad propositum attinet, quod loco nepotis filium exheredatum pater adrogavit. 1Si Titius heres institutus loco nepotis adoptetur, defuncto postea filio qui pater videbatur, nepotis successione non rumpitur testamentum ab eo, qui heres invenitur.
23 Papinianus, Questions, Book XII. Where a father, after emancipation granted by him to his son, resumes control over him again by arrogation, I have stated that the disinheritance previously made by his father will prejudice his rights; for it is proper to be observed in almost every law that an adopted son can never be understood to hold that relation towards his real father, in order to prevent the truth of nature from being obscured by a mere formality; so that the son is not considered to have been brought under the care of his father, but to have been returned to his control. In the case suggested, I do not think that it makes much difference whether the father arrogated his disinherited son either as his son or his grandson. 1Where Titius is appointed an heir and adopted in the place of a grandson, and afterwards the son who was considered the father of said grandson dies, the will is not broken by the succession of the grandson, so far as he who has been appointed heir is concerned.
24 Paulus libro nono quaestionum. Postuma sub condicione heres instituta si pendente condicione vivo patre nascatur, rumpit testamentum.
24 Paulus, Questions, Book IX. Where a posthumous child appointed heir under some condition is born while the condition is pending, and during the lifetime of its father, this breaks the will.
25 Idem libro duodecimo responsorum. Titius testamento heredem instituit et filium habens sic exheredationem posuit: ‘ceteri omnes filii filiaeque meae exheredes sunto’. Paulus respondit filium recte exheredatum videri. postea consultus, an videatur exheredatus, quem pater putavit decessisse, respondit filios et filias nominatim exheredatos proponi: de errore autem patris, qui intercessisse proponitur, apud iudicem agi oportere. 1Lucius Titius cum suprema sua ordinaret in civitate et haberet neptem ex filia praegnatem rure agentem, scripsit id quod in utero haberet ex parte heredem: quaero, cum ipsa die, qua Titius ordinaret testamentum in civitate hora diei sexta, eodem die albescente caelo rure sit enixa Maevia masculum, an institutio heredis valeat, cum, quo tempore scriberetur testamentum, iam editus esset partus. Paulus respondit verba quidem testamenti ad eum pronepotem directa videri, qui post testamentum factum nasceretur: sed si, ut proponitur, eadem die qua testamentum factum est neptis testatoris antequam testamentum scriberetur enixa esset, licet ignorante testatore, tamen institutionem iure factum videri recte responderi.
25 The Same, Opinions, Book XII. Titius appointed an heir by will, and having a son disinherited him, as follows: “Let all my other sons and daughters be disinherited.” Paulus was of the opinion that the son seemed to have been legally disinherited. Afterwards, having been asked whether a son whom his father believed to be dead could have been held to have been disinherited, he answered that, in accordance with the case stated, the sons and daughters were specifically disinherited, but, with reference to the case of the father who was mistaken with reference to the death of his son, the point should be determined in court. 1Lucius Titius, while drawing up his last will in the City, had a granddaughter by his daughter who was at that time in the country, and pregnant, stated that her unborn child should be heir to a portion of his estate. I ask, if on the very day when Titius drew up his will in town, about the sixth hour, his granddaughter Mævia brought forth a male child in the country; whether such an appointment was valid, since at the time when the will was drawn up the child had already been born? Paulus answered that the terms of the will seemed to have reference to a great-grandchild to be born after the execution of the will; but if, as in the case stated, the granddaughter of the testator was born upon the same day on which the will was executed, and before it was drawn up, even though the testator may have been ignorant of the fact, still, the appointment must be held to have been legally made; and this opinion is in accordance with law.
26 Paulus libro tertio sententiarum. Filius familias si militet, ut paganus nominatim a patre aut heres scribi aut exheredari debet, iam sublato edicto divi Augusti, quo cautum fuerat, ne pater filium militem exheredet.
26 Paulus, Decisions, Book III. Where a son under paternal control is serving in the army he should, just as any civilian, be appointed an heir, or be disinherited by his father by name; for the Edict of the Divine Augustus, by which it was provided that a father should not disinherit his son while in the army, has been repealed.
27 Idem libro tertio ad Neratium. Postumum ex qualibet vidua natum sibi filium heredem instituere potest.
27 The Same, On Neratius, Book III. A father can appoint as his heir a posthumous child the issue of him and any widow whomsoever.
28 Tryphoninus libro vicensimo disputationum. Filius a patre, cuius in potestate est, sub condicione, quae non est in ipsius potestate, heres institutus et in defectum condicionis exheredatus decessit pendente etiam tunc condicione tam institutionis quam exheredationis. dixi heredem eum ab intestato mortuum esse, quia dum vivit, neque ex testamento heres neque exheredatus fuit. herede autem scripto ex parte filio coheres post mortem filii institui potest. 1Filius familias miles de castrensi peculio fecit testamentum habens filium in eiusdem potestate. cum militare desisset, patre eodemque avo defuncto quaesitum est, an rumpetur eius testamentum. non quidem adoptavit nec hodie ei natus est filius nec priore subducto de potestate suo herede ulterior successit in proximum locum: sed tamen in potestate sua habere coepit, quem non habebat simulque pater familias factus est et filius sub eius reccidit potestate: rumpetur ergo testamentum. sed si heres sit institutus vel exheredatus iste eius filius, non rumpitur, quia nullo circa eum novo facto, sed ordine quodam naturali nactus est potestatem. 2Si quis ex certa uxore natum scribit heredem, in periculum rumpendi testamentum deducit ex alia susceptis liberis. 3Si quis eo tempore, quo nondum eius uxor esse posset, testator natum ex ea scripsit heredem, an postea contracto licito matrimonio natus heres ex testamento esse possit, quaeritur: veluti si scribas hodie heredem, qui tibi ex Titia natus erit, quando Titia ancilla vel minor annis viginti quinque ea, cuius pater tuus tutelam administravit aut tutor tu ipse fuisti, postea Titia uxor iusta tibi fuerit vel libertatem adepta aut tempore annorum viginti quinque et utilis anni et rationum allegatione, an natus heres esse possit? nemo certo dubitabit ex Titia, quae tunc propter tenorem aetatis uxor duci non potuit, quando testamentum fiebat, natum postea ea uxore ducta heredem esse posse. et generaliter nato post testamentum heredi scripto aditus est ad hereditatem, in qualicumque statu testamenti faciendi tempore fuit quae postea testatori civiliter nupta est. 4Quid autem, si filium post testamentum natum ex besse, filiam autem post testamentum natam ex triente scripsit heredem nec ullum coheredem dedit nec substituit invicem alium? unus natus solus ex testamento fit heres.
28 Tryphoninus, Disputations, Book XX. A son who was appointed an heir by his father while under control of the latter, dependent upon a certain condition with which he had nothing to do, and who was disinherited when the condition was not fulfilled, died while the condition of his appointment, as well as of his disinheritance, was still pending. I held that the son, when he died, was the heir of his intestate father, since during his lifetime he was neither the heir under his will, nor was he disinherited. Where a son is appointed heir to a certain share of an estate, his co-heir can be appointed after the death of the son. 1A son under paternal control, who was in the military service, made a will disposing of his peculium castrense, having at the same time a son under his control. After he left the service, and his father, who was also a grandfather, died; the question arose whether his will was broken. He did not, in fact, adopt anyone, nor had any son recently been born to him, nor was his nearest heir removed from his control, so that the next in order might take his place; still, he began to have under his control a person not previously in that position, and at the same time he became the head of a family and his own son became subject to his authority. Therefore, his will is broken. If, however, his said son had been either appointed or disinherited by his will, it would not be broken; for the reason that he obtained power not by any innovation on his part, but in the natural course of affairs. 2Where a party appoints an heir to be born of a certain wife of his he runs the risk of breaking his will if children are born to him by some other woman. 3If a testator appoints as heir a child to be born from a certain woman who at that time could not be his wife, and he afterwards was legally able to marry her; the question arises whether a child born under such circumstances can be an heir under the will. For example, if to-day you appoint as an heir a child born to yourself and Titia, and Titia at the time is a female slave, or a minor under twenty-five years of age, or because your father administered her guardianship, or you yourself administered it, and Titia afterwards should become your legal wife, either because she obtained her freedom, or reached the age of twenty-five years, her legal majority, or your accounts as guardian had been rendered; would your child born of her be your heir? Certainly, no one will doubt that such a child born after you married her would be your heir, even though on account of her age she could not be legally married at the time that the will was executed. And, generally speaking, whenever an heir appointed by a will is born after it is made, he has a right to enter upon the estate, no matter in what condition the woman who subsequently married the testator may have been in at the time of the execution of the will. 4But what if the testator had appointed the son and daughter to be born after his will his heirs, the son for two-thirds, and the daughter for one-third of his estate, without appointing any co-heir, or substituting one for the other? The child that was born would be the sole heir under the will.
29 Scaevola libro sexto quaestionum. Gallus sic posse institui postumos nepotes induxit: ‘Si filius meus vivo me morietur, tunc si quis mihi ex eo nepos sive quae neptis post mortem meam in decem mensibus proximis, quibus filius meus moreretur, natus nata erit, heredes sunto’. 1Quidam recte admittendum credunt, etiamsi non exprimat de morte filii, sed simpliciter instituat, ut eo casu valeat, qui ex verbis concipi possit. 2Idem credendum est Gallum existimasse et de pronepote, ut dicat testator: ‘si me vivo nepos decedat, tunc qui ex eo pronepos’ et cetera. 3Sed et si vivo filio iam mortuo pronepote cuius uxor praegnas esset, testamentum faceret, potest dicere: ‘Si me vivo filius decedat, tunc qui pronepos’. 4Num si et filius et nepos vivat, concipere ‘utrisque mortuis vivo se, tunc qui pronepos nasceretur?’ quod similiter admittendum est, ita sane, si prius nepos, deinde filius decederet, ne successione testamentum rumperetur. 5Et quid si tantum in mortis filii casum conciperet? quid enim si aquae et ignis interdictionem pateretur? quid si nepos, ex quo pronepos institueretur, ut ostendimus, emancipatus esset? hi enim casus et omnes, ex quibus suus heres post mortem scilicet avi nasceretur, non pertinent ad legem [ed. maior Velleam] <ed. minor Vellaeam>: sed ex sententia legis [ed. maior Velleae] <ed. minor Vellaeae> et haec omnia admittenda sunt, ut ad similitudinem mortis ceteri casus admittendi sint. 6Quid si qui filium apud hostes habebat testaretur? quare non induxere, ut, si antea quam filius ab hostibus rediret quamvis post mortem patris decederet, tunc deinde nepos vel etiam adhuc illis vivis post mortem scilicet avi nasceretur, non rumperet? nam hic casus ad legem [ed. maior Velleam] <ed. minor Vellaeam> non pertinet. melius ergo est, ut in eiusmodi utilitate praesertim post legem [ed. maior Velleam] <ed. minor Vellaeam>, quae et multos casus rumpendi abstulit, interpretatio admittatur, ut instituens nepotem, qui sibi post mortem suus nasceretur, recte instituisse videatur, quibuscumque casibus nepos post mortem natus suus esset rumperetque praeteritus: atque etiam si generaliter, ‘quidquid sibi liberorum natum erit post mortem’ aut ‘quicumque natus fuerit’ sit institutus, si suus nasceretur. 7Si eius, qui filium habeat et nepotem ex eo instituat, nurus praegnas ab hostibus capta sit ibique vivo pariat, mox ille post mortem patris atque avi redeat, utrum hic casus ad legem [ed. maior Velleam] <ed. minor Vellaeam> respiciat an ad ius antiquum aptandus sit, possitque vel ex iure antiquo vel ex [ed. maior Vellea] <ed. minor Vellaea> institutus non rumpere? quod quaerendum est, si iam mortuo filio pronepotem instituat redeatque mortuo. sed cum testamentum ab eo non rumpitur, nihil refert, utrum ex iure antiquo an ex lege [ed. maior Vellea] <ed. minor Vellaea> excludatur. 8Forsitan addubitet quis, an istis casibus si nepos post testamentum nascatur vivo patre suo, deinde ex eo concipiatur, isque vivo patre deinde avo nascatur, an non potuerit heres institui, quia pater ipsius non recte institutus esset. quod minime est expavescendum: hic enim suus heres nascitur et post mortem nascitur. 9Ergo et si pronepos admittetur, qui natus erit ex nepote postea vivo filio, atque si ex eo natus esset, adoptatur. 10In omnibus his speciebus illud servandum est, ut filius dumtaxat, qui est in potestate, ex aliqua parte sit heres institutus: nam frustra exheredabitur post mortem suam: quod non esse necessario in eo filio, qui apud hostes est, si ibi decedat et in nepote certe et pronepote, quorum si liberi heredes instituantur, institutionem numquam exigemus, quia possunt praeteriri. 11Nunc de lege [ed. maior Vellea] <ed. minor Vellaea> videamus. voluit vivis nobis natos similiter non rumpere testamentum. 12Et videtur primum caput eos spectare, qui, cum nascerentur, sui heredes futuri essent. et rogo, si filium habeas et nepotem nondum natum tantum ex eo heredem instituas, filius decedat, mox vivo te nepos nascatur? ex verbis dicendum est non rumpi testamentum, ut non solum illud primo capite notaverit, si nepos, qui eo tempore instituatur, quo filius non sit, verum et si vivo patre nascatur: quid enim necesse est tempus testamenti faciendi respici, cum satis sit observari id tempus quo nascitur? nam etsi ita verba sunt: ‘qui testamentum faciet, is omnis virilis sexus, qui ei suus heres futurus erit’ et cetera. 13Etiam si vovente parente vivo nascantur, sequenti parte succedentes in locum liberorum non vult rumpere testamentum: et ita interpretandum est, ut, si et filium et nepotem et pronepotem habeas, mortuis utrisque pronepos institutus succedens in sui heredis locum non rumpat. et bene verba se habent ‘si quis ex suis heredibus suus heres esse desierit’ ad omnes casus pertinentia, quos supplendos in Galli Aquili sententia diximus: nec solum, si nepos vivo patre decedat, nec succedens pronepos avo mortuo rumpat, sed et si supervixit patri ac decedat, dummodo heres institutus sit aut exheredatus. 14Videndum, num hac posteriore parte ‘si quis ex suis heredibus suus heres esse desierit, liberi eius’ et cetera ‘in locum suorum sui heredes succedunt’, possit interpretatione induci, ut, si filium apud hostes habens nepotem ex eo heredem instituas, non tantum si vivo te filius decedat, sed etiam post mortem, antequam ab hostibus reversus fuerit, succedendo non rumpet: nihil enim addidit, quo significaret tempus: nisi quod, licet audenter, possis dicere vivo patre hunc suum heredem esse desisse, licet post mortem decedat, quia nec redit nec potest redire. 15Ille casus in difficili est, si filium habeas et nepotem nondum natum instituas isque nascatur vivo patre suo ac mox pater decedat: non enim suus heres est tempore quo nascatur nec posteriori alii succedendo prohiberi videtur rumpere quam qui iam natus erit. denique et superiore capite ut liceat institui nondum natos, qui cum nascentur sui erunt, permitti, posteriore capite non permittit institui, sed vetat rumpi neve ob eam rem minus ratum esset, quod succedit. porro procedere debet, ut utiliter sit institutus: quod nullo iure potuit qui nondum natus erat. Iuliano tamen videretur duobus quasi capitibus legis commixtis in hoc quoque inducere legem, ne rumpantur testamenta. 16Quaeremus tamen, cum recepta est Iuliani sententia, an, si nascatur nepos vivo patre suo, deinde emancipetur, sponte adire possit hereditatem. quod magis probandum est: nam emancipatione suus heres fieri non potuit.
29 Scævola, Questions, Book VI. Gallus stated that posthumous grandchildren could be appointed heirs in the following terms, namely: “If my son should die during my lifetime, and within ten months after my death any grandchildren, either male or female, should be born to his wife, let them be my heirs.” 1Certain authorities hold that the appointment of heirs will be legal, even if the father does not mention the death of the son, but simply appoints his grandchildren his heirs; since it may be inferred from his words that in such an event the appointment will be valid. 2It must also be believed that Gallus held the same opinion with reference to grandchildren, when the testator says: “If my grandson should die during my lifetime, then my great-grandchild who is his issue,” etc. 3If, however, the grandson should die during the lifetime of the son, leaving his wife pregnant, and the testator should make a will; he can say: “If my son should die during my lifetime, then my great-grandson sprung from him shall be my heir.” 4While the testator’s son and grandson are still living, can the testator provide for the succession of his great-grandson, under the assumption that both the former will die during his lifetime? This also must be admitted, in order to prevent the will from being broken by the succession, if in fact the grandson should die, and then the son after him. 5What if the testator should only anticipate the event of the death of his son, and what would be the result if the testator should suffer the interdiction of water and fire? What if the grandson, the father of the great-grandson appointed heir, as we have stated, should be emancipated? These instances, as well as any of those in which a lawful heir is born after the death of his grandfather, have no connection with the Lex Velleia. But, in accordance with the spirit of the Lex Velleia, all these matters should be taken into consideration, just as other cases should be admitted, for example, where death occurs. 6What course must be pursued where the person who makes the will has a son in the hands of the enemy? Why has it not been held that, if the son should die before returning from captivity, but after the death of his father, then the grandson who was born during their lifetime, or even after the death of his grandfather, could not break the will? This case has no relation to the Lex Velleia. The better opinion therefore is that, for the sake of convenience, and especially after the Lex Velleia, which disposed of many cases where a will could be broken, the interpretation should be adopted that, where a testator appoints his grandson who was born after his death, he shall be held to have appointed him legally. And no matter under what circumstances the grandson born after the testator’s death may become his heir, whenever he has been passed over in the will, he can break it. Even if its provisions are stated in general terms, for instance: “Any children born to me after my death, or whoever shall be born after my death, shall be appointed my heir”; provided such a child should be born his heir. 7Where anyone has a son, and appoints his grandson born of said son his heir, and his daughter-in-law, being pregnant, is captured by the enemy, and while in their hands, and, during the lifetime of the grandfather and his son, brings forth a child, and the latter, after the death of his father and grandfather returns; is this case included in the Lex Velleia, or must recourse be had to the ancient law, so that the grandson who is appointed may not break the will either under the ancient law or the Lex Velleia? This question may be raised, if, after the death of the son, the grandfather appoints his grandson his heir, and the latter returns after the death of his grandfather. However, when the will cannot be broken by him who was appointed, it makes no difference whether he is excluded from the succession by the ancient law or by the Lex Velleia. 8Someone perhaps may doubt whether, in this instance, if the grandson should be born after the execution of the will, and during the lifetime of his father and grandfather, he can be appointed an heir because his father had not been legally appointed. There should be no apprehension on this ground, for the grandchild is born of a lawful heir after the death of his ancestors. 9Hence, if a great-grandson, born of a grandson, can be admitted to the succession, if afterwards his son should be living, a son born to him will also be entitled to the succession. 10In all these instances, it must be observed that only a son who is under parental control can be appointed heir to any portion of an estate, for his disinheritance after the death of the testator will be void. It is not necessary, however, for the son to be disinherited if he is in the hands of the enemy and dies there; and certainly with respect to the grandson and great-grandson, we never require their appointment if their children are appointed heirs, because they can be passed over. 11Let us now examine the Lex Velleia. It prescribes that children born in our lifetime, in like manner, cannot break our wills. 12The first section of the law has reference to those who after they are born, will become proper heirs. I ask, if you should have a son, and appoint as your heir your grandson by said son, who is not yet born, and your son should die, and your grandson should be born during your lifetime, what will be the result? It must be held from the words of the law that the will is not broken, as it not only states in the first section if the grandson is appointed at the time during which the son was not in existence, but also if he should be born during the lifetime of his father. In this case, why should it be necessary for the time when the will was executed to be considered, since it is sufficient to observe the time when the grandson was born? For, in fact, the following are the words of the law: “He who makes a will can appoint as heirs all those children of the male sex who will be his proper heirs”; and also, “even though they may have been born during the lifetime of their father”. 13In the next section of the law, it is not provided that those who succeed to the place of the children can break the will; and this must be interpreted in such a way that if you have a son, a grandson, and a great-grandson, and after the death of the first two, your grandson having been appointed and succeeding the lawful heir, will not break the will. It has been very properly decided that the words: “If any one of his heirs should cease to be his heir”; have reference to all those cases to which we have stated the formula of Gallus Aquilius is applicable; for not only where a grandson dies during the lifetime of his father, the great-grandson succeeding his deceased grandfather does not break the will, but also where he survives his father and then dies, provided he has either been appointed heir, or been disinherited. 14It should be considered whether by the words of this last section, namely: “If any of his heirs should cease to be his heir, his children shall become heirs in his stead”, are susceptible of the interpretation that if, having a son in the hands of the enemy, you appoint your grandson by said son your heir, not only if your son should die during your lifetime, but even after your death and before he returns from captivity, he does not break the will by the succession, for the testator added nothing by which the time might be indicated, unless you may rather rashly hold that he has ceased to be a lawful heir during the lifetime of his father (although he died after the death of the latter), because he did not and could not return. 15The following case is a difficult one. If you have a son and you appoint your grandson, who is not yet born, your heir, and the latter is born during the life of his father, and then his father dies, he is not his heir at the time when he was born, nor afterwards, for by his succession he who has already been born is held to be forbidden to break the will. Hence, by the first section of the law, those children are permitted to be appointed heirs who are as yet unborn, and who, after they are born, will be proper heirs. By the second section, their appointment is not permitted, but the law forbids them to break the will; nor on this account should the second section be considered of inferior importance. However, the child who was not yet born at the time he was appointed should take the place of his father (which in fact he could not do by law), just as if he had been legally appointed. Julianus, however, held that the two confused sections of the law might be reconciled in such a way as to prevent wills from being broken. 16After adopting the opinion of Julianus, let us, however, examine whether if a grandson is born during the lifetime of his father, and is subsequently emancipated, he can voluntarily enter upon the estate. This opinion should be approved, for a party cannot become a proper heir by emancipation.
30 Gaius libro septimo decimo ad edictum provinciale. Inter cetera, quae ad ordinanda testamenta necessario desiderantur, principale ius est de liberis heredibus instituendis vel exheredandis, ne praeteritis istis rumpatur testamentum: namque filio qui in potestate est praeterito inutile est testamentum.
30 Gaius, On the Provincial Edict, Book XVII. Among other things which are necessarily provided for in the execution of wills, one of the most important has reference to the appointment or disinheritance of children as heirs; lest, they having been passed over, the will may be broken; for a will is void where a son who is under paternal control is passed over.
31 Paulus libro secundo ad Sabinum. Dum apud hostes est filius, pater iure fecit testamentum et recte eum praeterit, cum, si in potestate esset filius, nihil valiturum esset testamentum.
31 Paulus, On Sabinus, Book II. Where a son is a captive in the hands of the enemy, his father can legally make a will and pass him over; but if the son was under paternal control, the will will be void.
32 Marcianus libro secundo regularum. Si filio emancipato exheredato is qui in potestate est praeteritus sit, ipse quidem emancipatus si contra tabulas petat, nihil agit, ab intestato autem et suus et emancipatus venient.
32 Marcianus, Rules, Book II. Where a son has been disinherited after his emancipation, and another, who is under the control of the father, is passed over, and the one who is emancipated contests the will, his act will be void; for both the proper heir and the son who is emancipated will be entitled to the succession ab intestato.