De iniusto rupto irrito facto testamento
(Concerning illegal, invalid, and broken wills.)
1 Papinianus libro primo definitionum. Testamentum aut non iure factum dicitur, ubi sollemnia iuris defuerunt: aut nullius esse momenti, cum filius qui fuit in patris potestate praeteritus est: aut rumpitur alio testamento, ex quo heres existere poterit, vel adgnatione sui heredis: aut in irritum constituitur non adita hereditate.
1 Papinianus, Definitions, Book I. A will is said not to have been executed in compliance with the law, where the legal formalities are lacking; or to be of no force and effect, where a son who is under the control of his father is passed over; or broken by another subsequent will, when by the terms of the latter, an heir is created, or the birth of a proper heir takes place; or where it does not become operative because the estate is not entered upon.
2 Ulpianus libro secundo ad Sabinum. Tunc autem prius testamentum rumpitur, cum posterius rite perfectum est, nisi forte posterius vel iure militari sit factum vel in eo scriptus est qui ab intestato venire potest: tunc enim et posteriore non perfecto superius rumpitur.
2 Ulpianus, On Sabinus, Book II. Hence, a first will is broken when a second one is properly executed, unless the latter has been executed in accordance with military law, or where the testator stated therein who would be entitled to succeed ab intestato; for, in this instance, the first will is broken by the second, although it may not be perfect.
3 Idem libro tertio ad Sabinum. Postumi per virilem sexum descendentes ad similitudinem filiorum nominatim exheredandi sunt, ne testamentum adgnascendo rumpant. 1Postumos autem dicimus eos dumtaxat, qui post mortem parentis nascuntur. sed et hi, qui post testamentum factum in vita nascuntur, ita demum per legem [ed. maior Velleam] <ed. minor Vellaeam> rumpere testamentum prohibentur, si nominatim sint exheredati. 2Unde etiam ante heredis institutionem vel inter medias heredum institutiones vel inter gradus exheredari possunt: nam divus Marcus decrevit idem in postumo quod in filio servandum, nec ratio diversitatis reddi potest. 3Ex his apparet aliam causam esse filiorum superstitum, aliam posteriorum: illi iniustum faciunt, hi rumpunt, illi semper, hi, si nascantur nec inveniant se exheredatos. 4Sed et si sit ante hoc aliud testamentum, a quo postumus exheredatus sit, placet, sive post mortem testatoris nascatur sive vivo testatore, utrumque ruptum esse et superius per inferius et inferius per postumum. 5Nominatim autem exheredatus postumus videtur, sive ita dixerit: ‘quicumque mihi nasceretur’, sive ita: ‘ex Seia’, sive ita: ‘venter exheres esto’. sed et si dixerit: ‘postumus exheres esto’, natus vel post mortem vel vivo testatore non rumpet. 6Licet autem postumus praeteritus adgnascendo rumpat, tamen interdum evenit, ut pars testamenti rumpatur: ut puta si proponas a primo gradu postumum exheredatum, a secundo praeteritum: nam hic primus gradus valet, secundus ruptus est.
3 The Same, On Sabinus, Book III. Posthumous children who descend through the male sex are disinherited by name, just in the same way as the living children of the testator, unless they break the will by their birth. 1We only style those children “posthumous” who are born after the death of their father; those who are born after the execution of the will are, in accordance with the Lex Velleia, forbidden to break the will, where they are disinherited by name. 2Wherefore, children can be also disinherited either before the appointment of an heir, or between the appointment of several heirs, or between the different degrees of inheritance; for the Divine Marcus decreed that the same rule should be observed with reference to a posthumous child, as in the case of a living one, since no reason for establishing a difference can be given. 3From these matters it is apparent that a difference exists between living children and those subsequently born. The former always render the will illegal, the latter break it, and when they are born do not find themselves disinherited. 4Where a former will by which a posthumous child is disinherited exists, it is established that it is broken, whether the child is born after the death of the testator, or during his lifetime; the first one is broken by the second, and the second by the birth of the posthumous child. 5A posthumous child is also considered to be expressly disinherited where the testator says: “Let any child whosoever that is born to me be disinherited, whether it has been brought forth by Seia, or whether it is still unborn.” If, however, he should say: “Let my posthumous child be disinherited”; and it is born either after the death, or during the life of the testator, it will not break the will. 6However, even though a posthumous child who has been passed over breaks a will by its birth, still, it sometimes happens that only a portion of the will is broken; as, for example, where the posthumous child was disinherited in the first degree, and passed over in the second; for in this instance the appointment in the first degree will be valid, if that in the second is void.
4 Idem libro quarto disputationum. Denique et deliberantibus primo gradu scriptis heredibus qui secundo gradu scripti sunt heredes optinere hereditatem non possunt: gradu enim rupto et infirmato amplius hereditas inde optineri non potest.
4 The Same, Disputations, Book IV. Then, if the heirs appointed in the first degree deliberate as to the acceptance of the estate, those appointed in the second degree cannot obtain it, because the second degree being broken and weakened, the estate can no longer be acquired from that source.
5 Idem libro tertio ad Sabinum. Nam et si sub condicione sit heres institutus quis, a quo postumus non est exheredatus, tamen pendente condicione rumpitur gradus, ut et Iulianus scripsit: sed et si sit ei substitutus quis, etiam deficiente condicione primi gradus non admittetur substitutus, a quo scilicet postumus exheredatus non est. puto igitur existente quidem condicione primi gradus postumo potius locum fore: post defectum autem condicionis natus postumus gradum non rumpit, quia nullus est. rumpendo autem testamentum sibi locum facere postumus solet, quamvis filius sequentem gradum, a quo exheredatus est, patiatur valere. sed si a primo gradu praeteritus, a secundo exheredatus sit, si eo tempore nascatur postumus, quo aliquis ex institutis vixit, totum testamentum ruptum est: nam tollendo primum gradum, sibi locum faciet.
5 The Same, On Sabinus, Book III. Where anyone is appointed an heir under some condition, by which a posthumous child is not disinherited, still, the degree is broken while the condition is pending, as Julianus stated. But when someone is substituted, even where the condition upon which the appointment in the first degree depends is not fulfilled, the substituted heir will not be admitted to the succession from which the posthumous heir has not been disinherited. I think, therefore, that if the condition of the appointment under the first degree is complied with, the posthumous heir will have the preference. However, the birth of the posthumous child, after failure to comply with the condition, does not destroy the appointment in the first degree, because the latter becomes null and void. By breaking the will, the posthumous child makes a place for himself, even though the son causes the second degree from which he was disinherited to become valid. Where, however, the posthumous child who was passed over in the first degree and disinherited in the second is born at the time when one of the appointed heirs is living, the entire will is broken; for, by destroying the first degree, he makes a place for himself in the succession.
6 Idem libro decimo ad Sabinum. Si quis filio exheredato nuru praegnate relicta decesserit et extraneum sub condicione instituerit et pendente condicione post mortem patris vel deliberante herede instituto de adeunda hereditate exheredatus filius decesserit et nepos fuerit natus, an rumpat testamentum? et dicemus testamentum non rumpi, cum nec exheredari huiusmodi nepos deberet ab avo, quem pater praecedebat. plane si forte institutus omiserit hereditatem, hunc avo suum futurum heredem ab intestato non dubitatur. utrumque propriis rationibus: nam adgnascendo quidem is rumpit quem nemo praecedebat mortis tempore: ab intestato vero is succedit cui ante eum alii non est delata hereditas, non fuisse autem filio delatam hereditatem apparet, cum deliberante instituto decesserit. sed haec ita, si mortis avi tempore in utero nepos fuit. ceterum si postea conceptus est, Marcellus scribit neque ut suum neque ut nepotem aut cognatum ad hereditatem vel ad bonorum possessionem posse admitti. 1Sed si pater eius, qui mortis avi tempore in utero fuit, apud hostes erat, nepos iste patre in eadem causa decedente post mortem avi succedendo testamentum rumpet, quia supra scripta persona ei non obstat: nec enim creditur in rebus humanis fuisse, cum in ea causa decedat, quamquam captivus reversus patris sui iniustum faceret testamentum in eo praeteritus. 2Sive autem in civitate nepos fuit conceptus sive apud hostes, quoniam datur et partui postliminium, succedendo testamentum rumpit. 3Succedendo itaque sui non rumpunt, sive fuerint instituti vel exheredati ab eo gradu ad quem hereditas defertur, scilicet si gradus ille valeat. 4Quocumque autem modo parentes praecedentes in potestate esse desierint, succedentes liberi, si fuerint instituti vel exheredati, non rumpent testamentum, sive per captivitatem sive per mortem vel poenam. 5Irritum fit testamentum, quotiens ipsi testatori aliquid contigit, puta si civitatem amittat per subitam servitutem, ab hostibus verbi gratia captus, vel si maior annis viginti venum se dari passus sit ad actum gerendum pretiumve participandum. 6Sed et si quis fuerit capite damnatus vel ad bestias vel ad gladium vel alia poena quae vitam adimit, testamentum eius irritum fiet, et non tunc cum consumptus est, sed cum sententiam passus est: nam poenae servus efficitur: nisi forte miles fuit ex militari delicto damnatus, nam huic permitti solet testari, ut divus Hadrianus rescripsit, et credo iure militari testabitur. qua ratione igitur damnato ei testari permittitur, numquid et, si quod ante habuit factum testamentum, si ei permissum sit testari, valeat? an vero poena irritum factum reficiendum est? et si militari iure ei testandum sit, dubitari non oportet, quin, si voluit id valere, fecisse id credatur. 7Eius qui deportatur non statim irritum fiet testamentum, sed cum princeps factum comprobaverit: tunc enim et capite minuitur. sed et si de decurione puniendo vel filio nepoteve praeses scribendum principi interlocutus est, non puto statim servum poenae factum, licet in carcere soleant diligentioris custodiae causa recipi. nec huius igitur testamentum irritum fiet, priusquam princeps de eo supplicium sumendum rescripserit: proinde si ante decesserit, utique testamentum eius valebit, nisi mortem sibi conscivit. nam eorum, qui mori magis quam damnari maluerint ob conscientiam criminis, testamenta irrita constitutiones faciunt, licet in civitate decedant: quod si quis taedio vitae vel valetudinis adversae inpatientia vel iactationis, ut quidam philosophi, in ea causa sunt, ut testamenta eorum valeant. quam distinctionem in militis quoque testamento divus Hadrianus dedit epistula ad Pomponium falconem, ut, si quidem ob conscientiam delicti militaris mori maluit, irritum sit eius testamentum: quod si taedio vel dolore, valere testamentum aut, si intestato decessit, cognatis aut, si non sint, legioni ista sint vindicanda. 8Hi autem omnes, quorum testamenta irrita damnatione fieri diximus, si provocaverint, capite non minuuntur atque ideo neque testamenta quae antea fecerunt inrita fient et tunc testari poterunt: hoc enim saepissime est constitutum nec videbuntur quasi de statu suo dubitantes non habere testamenti factionem: sunt enim certi status nec ipsi de se interim incerti. 9Quid tamen si appellationem eius praeses non recepit, sed imperatori scribendo poenam remoratus est? puto hunc quoque suum statum interim retinere nec testamentum irritum fieri: nam, ut est oratione divi Marci expressum, tametsi provocantis vel eius pro quo provocatur appellatio non fuerit recepta, poena tamen sustinenda est, quoad princeps rescripserit ad litteras praesidis et libellum rei cum litteris missum, nisi forte latro manifestus vel seditio praerupta factioque cruenta vel alia iusta causa, quam mox praeses litteris excusabit, moram non recipiant, non poenae festinatione, sed praeveniendi periculi causa: tunc enim punire permittitur, deinde scribere. 10Quid si quis fuerit damnatus illicite poena non sumpta, an testamentum eius irritum fiat, videamus: ut puta decurio ad bestias an capite minuatur testamentumque eius irritum fiat? et non puto cum sententia eum non tenuerit. ergo et si quis eum, qui non erat iurisdictionis suae, damnaverit, testamentum eius non erit irritum, quemadmodum est constitutum. 11Sed ne eorum quidem testamenta rata sunt, sed irrita fient, quorum memoria post mortem damnata est, ut puta ex causa maiestatis, vel ex alia tali causa. 12Quatenus tamen diximus ab hostibus capti testamentum irritum fieri, adiciendum est postliminio reversi vires suas recipere iure postliminii aut, si ibi decedat, lege Cornelia confirmari. ergo et si quis damnatus capite in integrum indulgentia principis sit restitutus, testamentum eius convalescet. 13Filii familias veterani sui iuris morte patris facti testamentum irritum non fieri constat: nam quantum ad testandum de castrensi peculio pro patre familias habendus est, et ideo nec emancipatione irritum fieri militis vel veterani testamentum verum est.
6 The Same, On Sabinus, Book X. Where anyone, after having disinherited his son, dies, leaving his daughter-in-law pregnant, and appoints a stranger his heir under some condition, and while the condition is pending and after the death of the father, or while the heir is deliberating as to whether or not he will enter upon the estate, the disinherited son should die, and a grandson should be born, will this break the will? We say that the will is not broken, as a grandson ought not to be disinherited in this way by his grandfather, who preceded his father in the succession. It is clear that if the appointed heir should refuse to accept the estate, there can be no doubt that this heir would inherit from his grandfather ab intestato. Both of these cases are founded upon good and sufficient reasons, for a posthumous child breaks a will by his birth, where no one took precedence of him at the time of the death of the testator, and he succeeds ab intestato where the succession has not been granted to anyone before him. It is evident that, in this instance, the succession has not been granted to the son, since he died while the appointed heir was deliberating as to his acceptance of the estate. This, however, is the rule only where the grandson was still unborn at the time of the death of his grandfather; for Marcellus says that if he had been conceived after that time, he could not be admitted to the succession either as a proper heir, a grandson, or a cognate, or would be entitled to prætorian possession of the estate. 1Where the father of a grandson who, at the time of the death of the grandfather, was in the hands of the enemy, and died in captivity, the said grandson, by obtaining the succession after the death of his grandfather, breaks the will, because his aforesaid father was not in his way; for, as he died while a captive, he is not considered to have been alive when his grandfather died, and even if the captive father should return, this would render the will of his father illegal, as he had been passed over therein. 2If a grandson was either conceived in his own country or among the enemy, as the right of postliminium is also granted to unborn children, the will will be broken by his birth. 3Therefore, those who succeed to proper heirs do not break the will, whether they are appointed heirs or disinherited in the degree in which the succession is granted, provided that this is valid. 4However, no matter in what way fathers standing first in the succession may cease to be under paternal control, whether through captivity, death, or the infliction of some penalty, their children who succeed them and who are either appointed heirs or disinherited by a will cannot break it. 5A will becomes invalid whenever anything happens to the testator himself; as, for instance, where he loses his civil rights through being suddenly reduced to slavery, for example, where he is captured by the enemy; or where, being over twenty years of age, he permits himself to be sold for the purpose of transacting the business of his purchaser, or to share in his own price. 6Where, however, anyone convicted of a capital crime is condemned to be thrown to wild beasts, or to fight as a gladiator, or some other sentence is imposed which will deprive him of life, his will becomes void, not from the time when he suffered punishment, but from the date of his sentence, for he then at once becomes a penal slave; unless, being a soldier, he is convicted of some military offence, for under such circumstances, it is customary for him to be permitted to make a will, as the Divine Hadrian stated in a Rescript; and I think that he can make one in accordance with military law. On this principle, therefore, as he is allowed, to make a will after his conviction, should one which he had previously executed be held valid, if he was allowed to make it, or should it be considered void on account of the penalty, after it has been made? There can be no doubt that, if he has a right to make a will by military law, and wishes the first will to be valid, he will be considered to have executed it. 7The will of a person who has been deported does not immediately become void, but only after the Emperor has confirmed the sentence, for then he who was condemned loses his civil rights. Where, however, the punishment of a Decurion is concerned, or that of his son or grandson, and the Governor refers the case to the Emperor, I do not think that the convicted party becomes at once a penal slave, although it is customary to incarcerate him for safe-keeping. Therefore, his will does not become void before the Emperor issues his decree that he must suffer the punishment. Hence, if he should die before this is done, his will will be valid, unless he takes his own life; for, by the Imperial Constitutions the wills of those who are conscious of their guilt are void, even though they may die while in possession of their civil rights. But where anyone, through weariness of life, or because he is unable to endure the suffering of illness, or through a desire for notoriety commits suicide, as certain philosophers do, this rule does not apply, as the wills of such persons are valid. The Divine Hadrian also made this distinction with reference to the will of a soldier, in a letter addressed to Pomponius Falco, stating that if anyone belonging to the army preferred to kill himself because he was guilty of a military offence, his will shall be void; but if he does so because he is tired of life, or on account of suffering, it will be valid, and if he should die intestate, his property can be claimed by his relatives, or, if he has none, by his legion. 8All those persons, whose wills we have stated become void because of their condemnation, do not lose their civil rights if they appeal from the decision of the tribunal; and therefore any wills which they may have previously executed do not become void, and it has very frequently been decided they can still make a will. They are not held to resemble those who are doubtful concerning their condition, and have not testamentary capacity, for they are certain of their condition, and they are only uncertain of themselves while the appeal is pending. 9But what if the Governor did not receive the appeal, but delayed the infliction of the penalty until it was confirmed by the Emperor? I think that the party in question would, in the meantime, also preserve his status, and that his will would not become invalid. For (as has been stated in the Address of the Divine Marcus) where an appeal which has been taken by the party directly, or by someone acting for him is not received, the infliction of the penalty must remain in abeyance until the Emperor answers the letter of the Governor and returns his decision together with the letter; unless the accused is a notorious robber, or has been guilty of fomenting sedition, or has perpetrated bloodshed, or where some other good reason exists which can be set forth by the Governor in his letter, and which does not admit of delay, not for the purpose of hastening the punishment, but in order to provide against danger to the community; for, under such circumstances, he is permitted to inflict the penalty and then communicate the facts to the Emperor. 10Let us see where someone has been illegally condemned and the penalty has not been inflicted, whether his will will be invalid. Suppose, for instance, that a decurion has been sentenced to be thrown to wild beasts, will he lose his civil rights, and will his testament become void? I do not think that this will be the case, as the sentence cannot legally bind him. Therefore, where a magistrate finds someone guilty who is not subject to his jurisdiction, his will will not be void, as has been frequently decided. 11The wills of those whose memory is condemned after their death, for example, on account of high treason, or some similar offence, are invalid. 12With reference, however, to what we have stated, namely, that the will of anyone captured by the enemy becomes invalid, it must be added that the will regains its validity through the right of postliminium, if the testator should return; or if he dies while in captivity, it is confirmed by the Lex Cornelia. Therefore, where anyone is convicted of a capital crime, and is restored to his civil rights through the indulgence of the Emperor, his will again becomes valid. 13It has been settled that the will of a son under paternal control who has served his time in the army, and has become his own master through the death of his father, is not void; for when a son disposes of his castrense peculium by will, he must be considered as the head of a household, and therefore it is certain that the will of a soldier or a veteran does not become void by his emancipation.
7 Ulpianus libro decimo ad Sabinum. Si miles iure civili testamentum fecerit et primo gradu heredem eum scripserit quem iure militari poterat, secundo eum quem communi iure potest, et post annum missionis decesserit, primus gradus irritus fiet et a secundo incipiet testamentum.
7 Ulpianus, On Sabinus, Book X. If a soldier should make a will in accordance with the Civil Law, and appoint an heir in the first degree, which he is entitled to do under military law, and in the second degree should substitute someone as heir which he can do by the Common Law, and should die a year after his discharge, the first degree becomes invalid, and the will commences with the second.
8 Idem libro undecimo ad Sabinum. Verum est adoptione vel adrogatione filii filiaeve testamentum rumpi, quoniam sui heredis adgnatione solet rumpi. 1Filia cum emancipatur vel nepos, quia una mancipatione exeunt de potestate, testamentum non rumpunt.
8 The Same, On Sabinus, Book XI. It is true that a will is broken by either the adoption or the arrogation of a son or a daughter, just as it is ordinarily broken by the birth of an heir. 1Where a daughter and a grandson are emancipated, this does not break a will, because they are released from paternal control by a single sale.
9 Paulus libro secundo ad Sabinum. Si pater ab hostibus capiatur filio manente in civitate, reverso eo non rumpitur testamentum:
9 Paulus, On Sabinus, Book II. Where a father is taken captive by the enemy, and his son retains his citizenship, the father’s will is not broken by his return.
10 Idem libro primo ad Vitellium. sed nec filius postliminio rediens rumpit patris testamentum, ut Sabinus existimavit.
10 The Same, On Vitellius, Book I. Nor does a son returning from captivity break the will of his father through the right of postliminium, which is the opinion held by Sabinus.
11 Ulpianus libro quadragesimo sexto ad edictum. Si binae tabulae proferantur diversis temporibus factae, unae prius, [ed. maior aliae] <ed. minor alia> postea, utraeque tamen septem testium signis signatae, et apertae posteriores vacuae inventae sint, id est nihil scriptum habentes omnino, superius testamentum non est ruptum, quia sequens nullum est.
11 Ulpianus, On the Edict, Book XLVI. Where two wills executed at different times are produced, and each of them is sealed with the seals of seven witnesses, and the last one, having been opened, is found to be blank, that is, without any writing whatsoever, the first will is not broken for the reason that the second one is void.
12 Idem libro quarto disputationum. Postumus praeteritus vivo testatore natus decessit: licet iuris scrupulositate nimiaque suptilitate testamentum ruptum videatur, attamen, si signatum fuerit testamentum, bonorum possessionem secundum tabulas accipere heres scriptus potest remque optinebit, ut et divus Hadrianus et imperator noster rescripserunt, idcircoque legatarii et fideicommissarii habebunt ea, quae sibi relicta sint, securi. idem et circa iniustum et irritum testamentum erit dicendum, si bonorum possessio data fuerit ei, qui rem ab intestato auferre possit. 1Si paganus, qui habebat iam factum testamentum, aliud fecisset et in eo comprehendisset fidei heredis committere, ut priores tabulae valerent, omnimodo prius testamentum ruptum est: quo rupto potest quaeri, an vice codicillorum id valere deberet. et cum haec verba sint fideicommissi, et sine dubio universa, quae illic scripta sunt, in causa fideicommissi erunt, non solum legata et fideicommissa, sed et libertates et heredis institutio.
12 The Same, Disputations, Book IV. A posthumous child, having been passed over, was born and died during the lifetime of the testator. Although by strict construction of the law, and by the employment of excessive subtlety, the will may be held to be broken, still, if it was properly sealed, the heir who was entitled to the possession of the estate in accordance with the terms of the will will acquire it; as the Divine Hadrian and Our Emperor stated in Rescripts. For this reason the legatees, as well as the beneficiaries of the trust, will be secure in the possession of whatever has been left to them. The same must be said with reference to a will improperly executed, or one which is void, where the possession of the estate was granted to him who could have obtained it ab intestato. 1Where a civilian who had already made one will makes another, and provides in the latter that the heir shall be entrusted with the execution of the first will, the first is unquestionably broken. Having been broken, it may be asked whether it should not be valid as a codicil. Since the words of the testator in the second will refer to a trust, undoubtedly all matters therein contained relate to a trust, not only the legacies and the property left to be administered in a fiduciary capacity but also all manumissions, as well as the appointment of an heir.
13 Gaius libro secundo institutionum. Postumorum loco sunt et hi, qui in sui heredis loco succedendo quasi adgnascendo fiunt parentibus sui heredes. ut ecce si filium et ex eo nepotem neptemve in potestate habeam, quia filius gradu praecedit, is solus iura sui heredis habet, quamvis nepos quoque et neptis ex eo in eadem potestate sint: sed si filius meus me vivo morietur aut qualibet ratione exeat de potestate mea, incipit nepos neptisve in eius loco succedere et eo modo iura suorum heredum quasi adgnatione nanciscuntur. ne ergo eo modo rumpat mihi testamentum, sicut ipsum filium vel heredem instituere vel exheredare nominatim debeo, ne non iure faciam testamentum, ita et nepotem neptemve ex eo necesse est mihi vel heredem instituere vel exheredare, ne forte me vivo filio mortuo succedendo in locum eius nepos neptisve quasi adgnatione rumpat testamentum: idque lege Iunia Vellea provisum est.
13 Gaius, Institutes, Book II. Those also are included among posthumous children who, by succeeding to the place of proper heirs, through their birth become the lawful heirs of their parents. For instance, if I have a son, and a grandson or a granddaughter born to him, all under my control, as the son takes precedence by a degree in the succession, he alone has the right of a direct heir, even though the grandson and granddaughter, who are his children, are also under my control. If, however, my son should die during my lifetime, or, for any reason whatsoever, should be released from my control, the said grandson and granddaughter will take his place in the succession, and in that way their rights as direct heirs will be acquired, as it were by birth, but my testament will not be broken in this way, just as if I should appoint or disinherit my son as my heir; nor can I legally make a will in such a way that it will become necessary for me to appoint as heir, or disinherit my grandson or my granddaughter, unless my son having died during my lifetime, and my grandson or granddaughter having taken his place in the succession, should break the will, just as is done by birth; and this the Lex Julia Velleia provided for.
14 Paulus libro singulari de adsignatione libertorum. Si ita facta sit exheredatio: ‘si filius natus natave sit, exheres esto’, utrisque natis non rumpitur testamentum.
14 Paulus, Concerning the Assignment of Freedmen. Where disinheritance is expressed as follows: “If a male or female child should be born, let it be disinherited”; and both are born, the will is not broken.
15 Iavolenus libro quarto epistularum. Qui uxorem praegnatem habebat, in hostium potestatem pervenit: quaero, filio nato quo tempore testamentum in civitate factum rumpatur? et si filius ante moriatur quam pater, an scripti heredes hereditatem habituri sint? respondi: non puto dubium esse, quin per legem Corneliam, quae de confirmandis eorum testamentis, qui in hostium potestate decessissent, lata est, nato filio continuo eius testamentum, qui in hostium potestate sit, rumpatur: sequitur ergo, ut ex eo testamento hereditas ad neminem perveniat.
15 Javolenus, Epistles, Book IV. A man whose wife was pregnant fell into the hands of the enemy. I ask where a son was born, at what time the will executed by the testator, who was there in the enjoyment of his civil rights, was broken, and if the son should die before the father, whether the testamentary heirs will be entitled to the estate. 1 answered that I did not think that there could be any doubt, in accordance with the Cornelian Law, which was enacted for the confirmation of the wills of those who died while in captivity, that, if a son was born, the will of a testator who was in the hands of the enemy would be broken. It follows, therefore, that the estate will belong to no one by this will.
16 Pomponius libro secundo ad Quintum Mucium. Cum in secundo testamento heredem eum qui vivit instituimus sive pure sive sub condicione (si tamen condicio existere potuit, licet non exstiterit), superius testamentum erit ruptum. multum autem interest, qualis condicio posita fuerit: nam aut in praeteritum concepta ponitur aut in praesens aut in futurum: in praeteritum concepta ponitur veluti ‘si Titius consul fuit’: quae condicio si vera est, id est si Titius consul fuit, ita est institutus heres, ut superius testamentum [ed. maior rumpatur] <ed. minor rumpatar>: tum enim ex hoc heres esset. si vero Titius consul non fuit, superius testamentum non est ruptum. quod si ad praesens tempus condicio adscripta est herede instituto, veluti ‘si Titius consul est’, eundem exitum habet, ut, si sit, possit heres esse et superius testamentum rumpatur, si non sit, nec possit heres esse nec superius testamentum rumpatur. in futurum autem collatae condiciones si possibiles sunt, existere potuerunt, licet non exstiterint, efficiunt, ut superius testamentum rumpatur, etiamsi non extiterint: si vero impossibiles sunt, veluti ‘Titius si digito caelum tetigerit, heres esto’, placet perinde esse, quasi condicio adscripta non sit, quae est impossibilis.
16 Pomponius, On Quintus Mucius, Book II. When in the second will we appoint an heir who is living, whether this is done either absolutely or conditionally, and the condition can be fulfilled even though this may not take place, the first will is broken. It makes a great deal of difference, however, what the imposed condition was; for everyone that can be conceived has reference either to the past, the present, or the future. One is imposed with reference to the past, for instance: “If Titius has been consul”; and if this condition is true (that is to say if Titius has actually been consul), the heir will be appointed in such a way that the first testament will be broken, for he becomes the heir for this reason. If, however, Titius has not been consul, the former testament will not be broken. Where the condition imposed with reference to the appointment of an heir relates to the present time, as for instance: “If Titius is consul”; the result will be the same, so that, if he is consul, the party can become the heir, and the former testament will be broken. But if he is not consul, the party cannot become the heir, and the former testament will not be broken. If conditions are imposed with reference to a future time, and they are possible and can be fulfilled, even though they may not take place, they cause the former will to be broken. Where, however, they are impossible, as, for example, “Let Titius be my heir if he has touched the sky with his finger”, it is held that this condition is just as if it had not been prescribed, as it is impossible.
17 Papinianus libro quinto responsorum. Filio praeterito qui fuit in patris potestate neque libertates competunt neque legata praestantur, si praeteritus fratribus partem hereditatis avocavit: quod si bonis se patris abstinuit, licet suptilitas iuris refragari videtur, attamen voluntas testatoris ex bono et aequo tuebitur.
17 Papinianus, Opinions, Book V. Where a son who was under his father’s control has been passed over, no manumissions or legacies granted by the will are valid, if the son who was passed over does not claim his share of the estate from his brothers. If, however, he refuses to accept any of his father’s estate, although, in accordance with the strict interpretation of the law, the will may be considered void, still, the wishes of the testator will be complied with on the principles of justice and equity.
18 Scaevola libro quinto quaestionum. Si qui heres institutus est a testatore adrogetur, potest dici satis ei factum, quia et antequam adoptetur, institutio in extraneo locum habebat.
18 Scævola, Questions, Book V. Where anyone who has been appointed heir by a testator is arrogated by him, it can be said that he has done enough for him, because before he adopted him, his appointment was merely that of a stranger.
19 Idem libro sexto quaestionum. Si ego et Titius instituti simus et a nobis postumus exheredatus sit, a substitutis nostris non sit exheredatus, Titio defuncto ne ego quidem adire potero: iam enim propter instituti personam, a quo postumus exheredatus est, in cuius locum substitutus vocatur, a quo postumus exheredatus non est, ruptum est testamentum. 1Sed si ego et Titius invicem substituti simus, quamvis in partem substitutionis exheredatus non sit, mortuo vel repudiante Titio me posse adire puto et ex asse heredem esse. 2In prima tamen specie et si vivat Titius, neque ego sine illo neque ipse sine me adire poterit, quia incertum est, an adhuc altero omittente rumpatur testamentum: itaque simul adire possumus.
19 The Same, Questions, Book VI. If Titius and myself should be appointed heirs, and by our appointment a posthumous child is disinherited, or one is not disinherited on account of our substitution as heirs, and Titius should die, I cannot enter upon the estate; for the will is broken on account of the appointment of a person by which the posthumous child is disinherited, and who is called to the succession as a substituted heir, by whom the posthumous child is not disinherited. 1Where, however, Titius and myself are substituted for one another, even though the posthumous child may not have been disinherited in that part of the will which mentions the substitution, and Titius either dies, or rejects the estate, I think that I can enter upon and become the heir of all of it. 2However, in the first case, even though Titius may be living, I cannot enter upon the estate without him, nor can he do so without me, for the reason that it is uncertain whether the will may not be broken by one of us refusing to accept, and therefore we should both enter upon the estate together.
20 Scaevola libro tertio decimo digestorum. Lucius Titius integra mente et valetudine testamentum fecit uti oportet, postea cum in valetudinem adversam incidisset, mente captus tabulas easdem incidit: quaero, an heredes his tabulis instituti adire possint hereditatem. respondit secundum ea quae proponerentur non ideo minus adiri posse.
20 The Same, Digest, Book XIII. Lucius Titius, while of sound mind and in good health, made a will in the proper manner, and afterwards became ill, and while insane mutilated the instrument. I ask whether the heirs appointed by the said will can enter upon the estate. The answer was, that in accordance with the facts stated, they will be prevented from doing so.