1Modestinus, Pandects, Book II. Heirs are said to be either appointed or substituted. Those who are appointed belong to the first degree, those who are substituted to the second, or the third degree. 1There are two kinds of substitutions, the simple, as, for example: “Let Lucius Titius be my heir, and if Lucius Titius should not be my heir, then let Seius be my heir; if he should not be my heir, or should be and die before arriving at puberty, then let Gaius Seius be my heir.” 2We can substitute an heir for others who have been appointed, as well as for those who have disinherited; and we can substitute an heir who has already been appointed, or anyone else. 3A father cannot substitute an heir for his children, unless he appoints one for himself; for without the appointment of an heir no provision of a will is valid.

2Ulpianus, On Sabinus, Book VI. It was introduced by custom, that if anyone made a will for his children under puberty, it would only be valid until his sons attained the age of fourteen years, and his daughters that of twelve. This must, however, be understood to apply where the children are under his control. We cannot substitute other heirs for emancipated children, but it is clear that we can do so for posthumous children, as we also can grandchildren and their successors, if they are not liable to again come under the authority of their father. If, however, they precede their parents, they can only be substituted for them where they have been appointed heirs or disinherited; for, according to the Lex Velleia they do not break the will of their grandfather by the succession, since if the principal will is broken, the pupillary one cannot stand. But if anyone appoints as his heir a child who has not yet reached puberty, he can appoint a substitute for him, provided he adopted him instead of his grandson, or arrogated him, and his son precedes him. 1Where anyone makes a will for the benefit of a child who has not reached puberty, he must also make one for himself. He cannot, however, make a will for his son alone, unless he happens to be a soldier; therefore, unless he also executes one for himself, it will not be valid, and unless the estate of the father is entered upon, the pupillary will will be of no effect. It is evident that if the estate is not affected under the principal will, it will come into possession of the heir ab intestato, and it must be held that the pupillary substitution will be preserved. 2Sometimes, in order to establish the validity of a pupillary substitution, the appointed heir can be compelled to enter upon the estate, or this can be done to uphold a trust in the second will; for instance, where the minor has already died. But if he is still living, Julianus thinks that he is despicable who solicits an estate during the lifetime of the owner. 3I think that where a minor under the age of twenty-five years is granted restitution because of having entered upon an estate, that this will confirm the second will, and enable the Prætor to grant an equitable action to the substitute. 4The testator should first mention his own heir, and then he can appoint a substitute for his son, and he must not reverse this order of appointment. Julianus also thinks that he should first appoint an heir for himself, and afterwards one for his son. If, however, he should first make a will for his son, and afterwards one for himself, his acts will not be valid. This opinion is adopted in a Rescript of our Emperor addressed to Virius Luppus, Governor of Britain, for it is clear that there is but one will, although there are two estates, so that, where anyone appoints necessary heirs for himself, he also appoints them for his son, and a man can substitute his posthumous child for his son who has not yet reached the age of puberty. 5Where a testator stated in his will: “If my son should die before reaching the age of fourteen years, let Seius be my heir”, and then added, “Let my son be my heir”; the substitution will be valid, although he inserted the provision in a reversed order. 6But where he said: “If my son should not be my heir, let Seius be my heir, let my son be my heir”; Seius is appointed heir in the second degree; and if his son should be his heir, there is no doubt that Seius will be the heir of the son; but if the son becomes the heir and dies before attaining the age of puberty; Seius is held to have been properly admitted to the succession, as not the order observed in the will, but the order of the succession must be considered. 7Therefore, when it was said that a substitution could be made for each one of the children, this was added in order to show that the father should not begin with the will of a son, who has not yet reached the age of puberty.

3Modestinus, Differences, Book I. Where a father made a substitution for his son who had not yet arrived at puberty, as follows: “Whoever becomes my heir, let him also be the heir of my son who has not yet arrived at the age of puberty”; it was decided that only such heirs as had been mentioned with reference to this substitution in the will should be admitted to share in the estate. Hence a master who, by means of his slave, had acquired a portion of the estate, could not become the heir by virtue of his substitution for a child who had not attained the age of puberty, if the slave was no longer under his control.

4The Same, Concerning Inventions. At the present time, we are governed by the Constitution of the Divine Marcus and Verus, which provides that whenever a father makes a substitution for his child under the age of puberty instead of another, where there are two, he will be understood to have made the substitution in both instances; that is, where his son was not his heir, or was his heir but died before attaining the age of puberty. 1It is held that this privilege should also be extended to the third kind of substitution. For if a father should appoint, as his heirs, his two sons who are under the age of puberty, he substitutes them for one another, and the Divine Pius decreed that it should be held that the substitution was reciprocal in both cases. 2Where, however, two children, one of whom has reached the age of puberty, and the other has not, are reciprocally substituted by the ordinary formula: “I substitute them each for the other”; the Emperors Severus and Antoninus decided that in this instance only the ordinary substitution should be held to have been made; for it seemed to have been inconsistent that the double substitution should take place with reference to one of the heirs, but that, so far as the other was concerned, only the ordinary substitution should be provided; therefore, in this case, the father ought to have made a substitution for each one separately, so that if the child who had arrived at puberty should not be his heir, the one who had not reached puberty should be substituted for him; but if the one who had not reached puberty should be his heir, and die before attaining that age, his brother might be substituted for the share of his co-heir. Under these circumstances, the brother will be held to have been substituted in both ways; as, if he were not substituted in the ordinary way for the heir who had not arrived at puberty, the question would arise as to the intention of the father, and whether he was understood to have had in mind but one substitution for both his children, since one substitution is only understood to be included in the other, where the wishes of the parent are not opposed; or if, for the particular purpose of avoiding a dispute, he should, in any event, substitute the brother for the child who had not arrived at puberty, as follows: “Whether he does not become my heir, or whether he does, but dies under the age of puberty.”

5Gaius, On the Lex Julia et Papia, Book III. Where several heirs mentioned in a will were substituted for someone, as follows: “If he should not be my heir, let whoever will be inherit his share of my estate”, it is settled that each heir will be called to the share of the heir of him who is lacking; and it does not make any difference whether he who becomes heir to the larger portion of the estate does so by virtue of his appointment, or whether he has obtained it through some law by which he was granted the share of another.

6Terentius Clemens, On the Lex Julia et Papia, Book IV. Where anyone who is not capable of acquiring the entire estate of the testator is substituted for the son of the latter who has not yet reached the age of puberty, he can acquire the entire estate for the reason that he obtains it through the minor. Our Julianus holds that this opinion should be interpreted in such a way that the party in question will not be entitled to all the property of the testator. If, however, anything should subsequently be acquired by the minor from another source, or if he should be disinherited, the substitute will not be prevented from acquiring the estate, since he obtains it from the minor.

7Papinianus, Opinions, Book VI. In accordance with the terms of the Civil Law, it is not permitted to make a substitution after the fourteenth year. A party who cannot be admitted as a substitute cannot be admitted as an heir, lest, against the will of the testator, the son may in the meantime fail to obtain what his father gave him by his will.

8Ulpianus, On Sabinus, Book IV. Where a father appoints a substitute for his children who have not reached the age of puberty, he usually does so absolutely, or under some condition. He does so absolutely when he says: “If my son should die before reaching the age of puberty, let Seius be my heir.” Either Seius is here appointed an heir, and is appointed a substitute for a minor without any condition, or he is merely substituted. But if the testator substitutes an heir who has been appointed, that is to say as follows, “If he should be my heir”; he does not become the heir by reason of a substitution, unless he was the heir by appointment. Such a substitution resembles the following one, namely, “Whoever will have been my heir in accordance with what has been previously stated”; for this substitution contains a condition similar to the former one. 1These words: “Let him be heir to my son under the age of puberty who would have been my own heir,” have the following meaning, that not every one who might be the heir of the father can be held to be substituted, but only the testamentary appointee. Therefore, neither a father who becomes an heir through his son, nor a master who becomes one through his slave, is admitted to the substitution; nor can the heir of the heir be admitted, because these parties are not entitled to the estate through the wish of the testator. Substitutes have a right to the same shares to which they would be entitled out of the estate of the head of the family himself.

9Labeo, Abridgments of the Last Works of Javolenus, Book I. Where a father substituted for his son under the age of puberty the same persons whom he appointed his own heirs, and you in addition, you will be entitled to half of the estate of the son, and the other heirs of the father will be entitled to the other half, so that the undivided half will belong to you, and a division of the remaining half will be made in proportion to the shares of the estate of their father to which the others would have been entitled by inheritance.

10Ulpianus, On Sabinus, Book IV. Where, however, several parties have been substituted as follows: “Whoever shall be my heir in accordance with what has been previously stated”, and then some of them die after having become the heirs of their father, the surviving heirs, in accordance with the substitution, can only take that portion of the estate to which they are entitled pro rata by their appointment, and no one will be entitled to it as a representative of the deceased heirs. 1Those whom I can appoint my own necessary heirs, I can also substitute as the heirs of my son, my slave, or my brother, even though they are not yet born. Therefore, a posthumous child can be the necessary heir of his brother. 2A certain man was substituted by the testator for a child not yet arrived at puberty, and who had been appointed heir to an entire estate. If the son becomes the heir of his father, can the substitute separate the two estates, so that he may take that of the son, but not that of the father? He cannot do so; for he must either accept or reject the estate of both, because they are undivided. 3Ad Dig. 28,6,10,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 23.The same rule applies if a father should appoint me heir to one portion of his estate, and his son to another portion, and I should reject the bequest of the father, for I cannot have that of the son. 4Where anyone is appointed sole heir to an estate, and, having been substituted for a disinherited son, rejects the estate of the father, as he was not substituted, he cannot acquire the estate of the son; for the will of the son will not be valid, unless he accepted the estate of his father, since, in order to establish the validity of the substitution, the will must have been so drawn that the estate could be entered upon by the heir. 5Whatever comes into the hands of the pupillary substitute after the death of the testator belongs to him, for the testator did not substitute him for his own estate, but for that of the minor; as anyone can make a substitution for a disinherited son, unless you give as an example the case of a soldier who substitutes an heir for his son, with the intention that only such property as would have come into the hands of the son will belong to the substitute. 6We also hold that, in the case of a minor who has been arrogated, the property to which he would have been entitled if this had not taken place will not belong to his substitute, but that alone which the arrogator himself gave him; unless we make the distinction that the fourth part which, in accordance with the terms of the Rescript of the Divine Pius, he is obliged to leave him, cannot be acquired by the substitute. Scævola, however, holds in the Tenth Book of Questions that the arrogator should be permitted to do this, which opinion is reasonable. I, however, go still further, and think that the substitute will be entitled to any property which has been acquired by reason of the adoption, as for instance, where a friend or relative of the arrogator left anything to the heir. 7No one who is appointed, and at the same time substituted for himself, will gain anything without a change of parties; but this occurs when there is only one degree. Where, however, there are two degrees, it can be said that the substitution will be valid, as Julianus holds in the Thirtieth Book of the Digest. Should the testator make the appointment of an heir, when Titius is his co-heir, in the following terms: “If Stichus should not be my heir, let him be free and be my heir”, the substitution will not be valid. But if he should say, “If Titius should not be my heir, then let Stichus be free, and be heir to his share”, there are two degrees of substitution, and therefore if Titius should reject his portion of the estate, Stichus will become free and the heir of the testator.

11Paulus, On Sabinus, Book I. Where the party who is appointed heir is substituted for a son, he will not be prevented from taking under the substitution, if he can do so after the death of the son. Again, on the other hand, he can be held liable to certain penalties under the will of the minor, although he may not be subject to any under that of the father.

12Papinianus, Questions, Book III. If a son who has been appointed the heir of his father, and afterwards becomes the heir of his brother through substitution, rejects the estate of his father, but prefers to retain that of his brother, he should be heard. For I think it is more equitable that the Prætor should permit the separation of the estates of the brother and the father; for he has the right to decide that children shall be freed from the burdens of an estate which they have not voluntarily assumed, but no right excludes them from an estate against their will; and especially when, leaving the substitution out of consideration, the substituted brother would be entitled to the estate. Hence, only the legacies should be paid in accordance with the substitution, and the rule of division established by the Falcidian Law should be followed, not with reference to the estate of the father, as is customary, but with respect to that of the child who had not yet arrived at puberty.

13Pomponius, On Sabinus, Book XIII. It makes no difference in what degree an heir may be substituted for children.

14The Same, On Sabinus, Book II. In a pupillary substitution, even though a longer time may have been fixed, the substitution will, nevertheless, terminate at the age of puberty.

15Papinianus, Opinions, Book VI. A centurion directly substituted an heir for his son: “If he should die without issue before reaching the age of twenty-five years.” The substitution for the son would acquire his estate by Common Law if the latter should die before his fourteenth year; after that age, however, he could not, under military privilege, acquire anything more than the estate of the father and the profits derived from the same found among the effects of the son.

16Pomponius, On Sabinus, Book III. If anyone should bequeath a slave by his will, and afterwards order a substitute, whom he had appointed for his son, to liberate said slave, the latter will become free, just as if the bequest of the legacy was annulled; for so far as the legacy is concerned, what was last mentioned in these wills must be considered, as is done in the case of the same will, or where codicils have been confirmed by a will. 1Where, after a testator has executed his will, he afterwards makes one for his son in the presence of competent witnesses, this act will, nevertheless, be valid, and the will of the father will stand; but if the father should make a will for both himself and his son, and afterwards one only for himself, both the will and the substitution first made will be broken. Where, however, the father made the second will and appointed his heir, as follows: “If his son should die in his lifetime”, it can then be said that the first will is not broken, for the reason that the second, in which the son was passed over, is void.

17The Same, On Sabinus, Book IV. Anyone can be substituted for a child, even though he should be born after the death of the child for whom he was substituted as heir.

18Ulpianus, On Sabinus, Book XVII. If a slave, owned in common with another, is substituted for a son not yet arrived at puberty, together with the grant of his freedom, and he should be purchased by the testator, he will become a necessary heir of the minor; but if he should be purchased by the latter, he will not be his necessary, but his voluntary heir; as Julianus states in the Thirtieth Book of the Digest. But whether he was purchased by the father or the minor, equity suggests that he himself, if he tenders the price of his master’s share, can obtain both his freedom and the estate. 1Where a slave is bequeathed to Titius, he can be substituted for the minor son of the testator with the grant of his freedom; just as where he is bequeathed and appointed heir, and the legacy will vanish when the condition on which the substitution depends is complied with.

19Julianus, Digest, Book XIII. The same rule applies where a slave is substituted after the death of a legatee.

20Ulpianus, On Sabinus, Book XVI. The will of the father and that of the son are considered as one, in accordance with the Prætorian Law; for (as Marcellus states in the Ninth Book of the Digest), it will suffice for the will of the father to be sealed, if that of the son is also sealed; and the seven seals of the witnesses attached to the father’s testament will be sufficient. 1Where a father makes a written will for himself and an oral will for his son, or vice versa, both will be valid.

21The Same, On the Edict, Book XLI. If a testator should make a substitution as follows: “If my son dies before reaching his tenth year, let Seius be my heir”; and the son should die after his tenth year, but before reaching his fourteenth, the better opinion is that the substitute cannot demand possession of the estate, for he is not held to have been appointed a substitute in this case.

22Gaius, On the Provincial Edict, Book XVII. Where a son demands possession of the estate of his father in opposition to the terms of the will of the latter, and he has been substituted by the said will for his brother under the age of puberty, he will be excluded from the substitution.

23Papinianus, Opinions, Book VI. Where a testator appointed several heirs, and said: “I substitute them all reciprocally”, and, after his death, the estate was entered upon by some of them, one of the heirs being dead, if the condition upon which the substitution depended is fulfilled, and another heir rejects his share, all of it will belong to the survivors, because they are held to have been substituted for one another with reference to the entire estate. If, however, the testator should appoint heirs and say: “I substitute them reciprocally”, those will be held to have been substituted who accept the estate.

24Ulpianus, Disputations, Book IV. Where several heirs are appointed for different shares of an estate, and all of them are substituted for one another, they should generally be considered as substituted for the same shares to which they were appointed heirs; for example, if one was appointed heir to one-twelfth, another to one-eighth, and a third to a quarter of the estate, and the latter should reject his share, the quarter shall be divided into nine parts, to eight of which he will be entitled who was appointed heir to two-thirds, unless it was the intention of the testator that he who was appointed heir to one-twelfth should receive one share, and this is hardly to be believed unless it was explicitly stated.

25Julianus, Digest, Book XXIV. Where a father substituted his two sons under the age of puberty reciprocally, and Titius for the one who would die last; the opinion was that the brothers alone were entitled to the possession of the estate, and that there were in this instance two degrees of appointment, as it were; so that, in the first place, the brothers should be substituted for one another, and if they should not be heirs, then Titius was to be called to the succession.

26The Same, Digest, Book XXIX. If a father should appoint as his heir his son who is under the age of puberty, and appoint as his substitute a posthumous child, and a child should be born during the lifetime of its father, the will will be broken if the other child is living. If, however, the said child should be born during the lifetime of its father, but after the death of its brother, it will be the sole heir of its father.

27The Same, Digest, Book XXX. If Titius should be substituted for his co-heir, and Sempronius should afterwards be substituted for him, I think that the better opinion is that Sempronius was substituted for both shares of the estate.

28The Same, Digest, Book XXX. The Lex Cornelia, which confirms the wills of those who die in the hands of the enemy, not only has reference to the estates of persons who made their wills, but to all estates which can belong to anyone by testamentary disposition, even if they had not fallen into the hands of the enemy. Hence, where a father died in captivity, leaving in his own country a son under the age of puberty, and the latter died before reaching that age, the estate belonged to the substitute; just as if the father had not been captured by the enemy. Where, however, the father died at home, and his minor child died in the hands of the enemy, having been captured after his father’s death; will it not be proper to hold that his estate belongs to the substitute, under the terms of the said law? But if the son falls into the hands of the enemy during the lifetime of his father, I do not think that the Lex Cornelia will apply, because it does not provide that he who left no property in his own country shall have any heirs. Wherefore, even if the son, having arrived at puberty, should be captured during the lifetime of the father, and should afterwards die while in the hands of the enemy, after the death of his father at home, the estate of his father will belong to his next of kin, by virtue of the Law of the Twelve Tables, but the estate of the son will not belong to the latter by the terms of the Cornelian Law.

29Scævola, Questions, Book XV. Where a father as well as his son have been captured by the enemy, and both die in captivity; even though the father may die first, the Cornelian Law does not confirm the substitution, unless the minor should die after returning home; although if both should die at home, the substitute will be entitled to the estate.

30Julianus, Digest, Book LXXVIII. A certain man, by his will, appointed Proculus heir to a fourth part of his estate, and Quietus to the remaining three-fourths of the same; and afterwards substituted, as heirs, Florus for Quietus, and Sosias for Proculus; then, if neither Florus nor Sosias should become the heirs, he substituted the colony of the Leptitians heirs to three-quarters, and several heirs to an amount exceeding the remaining quarter. Proculus and Sosias died during the lifetime of the testator and Quietus entered upon the estate. The question arose whether the fourth left to Proculus should belong to Quietus, or to those who had been substituted in the third degree. I answered that the intention of the testator seemed to have been that those heirs whom he substituted in the third degree should only have a right to the succession where the entire estate had been abandoned; and that this intention was apparent from the fact that he had distributed more than twelve shares among the substitutes; and therefore that the fourth part of the estate, which was in question, would belong to Quietus.

31The Same, On Ambiguities. A substitution was made as follows: “Let the same person be my heir who will be my heir, as above stated.” The question arises what heir is to be understood by this, whether it would be anyone whosoever, or only the party who would be the heir at the time when the son died? It was decided by men learned in the law that he would be the heir who might succeed the testator at any time whatsoever; for even though the appointed heir had died during the lifetime of the minor, and the will had been attacked as being inofficious with reference to a certain part, it should be held that the other is still the heir under the substitution. 1The rule cannot be said to be the same in the following case: for instance, where a testator has two sons, Gaius, who has arrived at puberty, and Lucius, who has not, and he makes the substitution as follows: “If my son Lucius should die without reaching the age of puberty, and Gaius should not be my heir, then let Seius be my heir”; for legal authorities have interpreted this to mean that the condition of the substitution should be referred to the death of the son who has not arrived at puberty.

32The Same, On Urseius Ferox, Book I. Where a testator appointed several heirs, among whom was Attius, to unequal shares of his estate, and if Attius should not accept, he substituted the others as heirs in proportion to their interest, and then added that Titius should be the co-heir of those who were substituted. The question arose to what share Titius would be entitled, and what the others would have. I answered that Titius would be entitled to one share and the others to shares in proportion to their rights in the estate; for instance, if there were three of them, Titius would have the fourth part of the share of Attius, and the other heirs would have the three-fourths remaining, in proportion to the shares to which they were entitled by appointment. If, however, the testator should add not only Titius, but other heirs, the latter would be entitled to a portion equal to that of the share of the substitute; for example, suppose that three co-heirs were substituted and two foreign heirs added, the latter would be entitled to five parts of the share of Attius, and the remaining co-heirs would receive the balance in proportion to their respective shares.

33Africanus, Questions, Book II. If a mother should make a will and appoint her son her heir, as soon as he arrives at the age of fourteen years, and in case he should not be her heir, appoints another for him by pupillary substitution, this will be valid. 1Where a son is appointed an heir, and his own posthumous son another, in compliance with the rule of Gallus Aquilius, and Titius is substituted for the grandson if he should not be the heir, if the son becomes his father’s heir, the opinion was given that Titius should be absolutely excluded; that is to say, even if a grandson should not be born.

34The Same, Questions, Book IV. A testator who had two sons not yet arrived at puberty, substituted a certain person as heir of the survivor. If both should die at the same time, it was held that the substitute would be the heir of both, because the survivor is understood to mean not only one who comes after another, but also he whom no one succeeds; just as, on the other hand, the first is understood to mean not only one who comes before another, but also him who has no one before him. 1A testator appointed a son, who had not reached puberty, and Titius, his heirs. He substituted Mævius for Titius, and for his son he substituted any of his heirs who had previously been mentioned by him. Titius rejected the estate; Mævius entered upon it. The son having afterwards died, it was decided that the estate of the minor, which was derived from the substitution, would go to Mævius, as the sole heir who had entered upon the estate of the father. 2Even though application may be made for the possession of the estate contrary to the will of the father, the pupillary substitution will still be valid, and all the legacies bequeathed under said substitution should be paid.

35The Same, Questions, Book V. Where prætorian possession of an estate is applied for by a minor in opposition to the will of his father, an action to compel the payment of legacies should still be granted against the substitute; and, for the reason that the son does not owe any legacies bequeathed to strangers, those granted under the substitution shall be increased; just as where legacies are bequeathed under the substitution, if more comes into the hands of the son through prætorian possession of the estate than he would otherwise receive, so, also will he owe more to persons who are privileged. I think that the result of this will be that where a son who has not arrived at puberty is appointed heir to the entire estate, and he is deprived of half of it through prætorian possession, the substitute will be free from liability to pay half of the legacies, just as the portion which is added through obtaining possession of an estate increases the legacies, so also, in this instance, the amount which is lost diminishes them.

36Marcianus, Institutes, Book IV. Anyone can establish several degrees of heirs in a will, for example: “If So-and-So does not become my heir, let So-and-So not be my heir”, and I appoint several others in succession, so that in the last place, by way of reserve, a slave is appointed a necessary heir. 1Several heirs can be substituted instead of one, or one instead of several, or particular heirs instead of each one, or those who have been appointed heirs can be substituted for one another.

37Florentinus, Institutes, Book X. An heir can be substituted for each of the children of a testator, or for one of them who may survive; for each one, where he does not wish that any of them should die intestate, for the survivor, if he desires the right of legitimate succession to remain unimpaired.

38Paulus, On Pupillary Substitutions. Where a man has several children, he can substitute an heir for any of them, and it is not necessary for him to do so for all; just as he can make a substitution for one of them. 1Therefore, he can make a substitution for a short period during the lifetime of his heir; for instance, “If my son should die before reaching the age of ten years, let Titius be his heir”. 2Moreover, the substitution will be admitted if he appoints several heirs for different terms of the age of the son, as, for example: “If he should die before reaching the age of ten years, let Titius be his heir; if he should die after his tenth year, but before reaching his fourteenth, let Mævius be his heir.” 3Where an heir appointed by a father, who has been charged with delivery of the estate, enters upon it, after having been compelled to do so by the beneficiary of the trust, although the other bequests mentioned in the will may be confirmed by this acceptance, as for example, legacies, and grants of freedom; still, where the will has become inoperative under the Civil Law, the pupillary substitution included therein is not revived; as Quintus Cervidius Scævola held. Many authorities, however, are of a different opinion, for the reason that the pupillary substitution is a part of the former will; and this is the practice at present.

39Javolenus, On the Last Works of Labeo, Book I. A man had, by his son, two grandsons who were under puberty, one of whom was under his control, and the other was not. He wished them to inherit equal portions of his estate, and provided that, if either of them died before reaching the age of puberty, his share should be transferred to the other; and in compliance with the advice of Labeo, Ofilius, Cascellius, and Trebatius, he appointed as his sole heir the grandson who was under his control, and charged him with the delivery of half of his estate to his other grandson when he arrived at puberty, and substituted the other heir for the one who was under his control, if the latter should die before reaching that age. 1We can substitute two heirs under different conditions for a son under the age of puberty; for instance, one of them can be substituted if the son should have no children, and another child should be born and die before reaching the age of puberty. 2A certain testator appointed four heirs, and substituted others for all of them except one, and the one for whom no substitute had been appointed, as well as one of the others, died during the lifetime of the father. Ofilius and Cascellius held that the share of the one for whom no one had been substituted also belonged to the substitute of the deceased heir; which opinion is correct.

40Papinianus, Questions, Book XXIX. An heir who had not reached the age of puberty, and who had been arrogated after proper investigation, died. Just as in the case of heirs-at-law, by Imperial authority, a bond must be furnished, so, if a natural father has substituted an heir for his son under the age of puberty, recourse must be had to the substitute; for only prætorian actions can be granted to heirs-at-law.

41The Same, Opinions, Book VI. An heir was substituted for his co-heir, but died before he entered upon the estate, or the condition upon which the substitution depended was fulfilled. Both shares of the estate will belong to him who was substituted, either before the substitution of the heir, or afterwards; nor will it make any difference whether the substitute dies after or before the appointed heir. 1By the following words: “I substitute them for one another”, the share refused by one of the heirs will go to those mentioned in the will, in proportion to what they themselves obtain by their appointment, or what has been acquired by the person to whose control they are subject. 2Where a father makes a substitution for his daughter, or for a grandson who occupies the place of his son, or who has held it after the execution of the will, the pupillary substitution becomes void if any of these should not belong to the family of the testator at the time of his death. 3If a father should appoint his son his heir and request him, if he should die before reaching the age of puberty, to give his estate to Titius, it has been established that the lawful heir of the son shall be forced to surrender the estate of his father, with the exception of the right granted by the Lex Falcidia, just as if the estate had been granted in trust to the heir of the said minor after his death. The same rule should be observed when a condition upon which the substitution depends is expressed in ambiguous terms, and extends beyond the age of puberty. This, however, will only apply where the will of the father is valid in law; for if the instrument which he drew up as his will is not valid, it will not be admitted as a codicil unless this is expressly stated, nor will the property belonging to the son be bound by the trust. Therefore, if the father has disinherited the son, and left him nothing, the trust will be void. Otherwise, if the son has received either a legacy or a trust from his father, the trust of the estate with which he is charged will be due in proportion to the property which he has received, without reference to the proportion allowed by the Falcidian Law. 4Where a testator bequeathed different shares separately to several heirs, and after doing so said: “I substitute my heirs for one another”, he is held to have substituted those joined in the first place reciprocally, and if they do not accept their shares, all the other coheirs should be admitted. 5Where a testator appointed a father and his son heirs to a share of his estate, and substituted them one for the other, and then bequeathed the rest of his property to their co-heirs, and afterwards disposed of the entire estate as follows: “I substitute all of these heirs reciprocally”, the question arose as to his intention, and whether by mentioning all of them he included the father and son in the substitution of the co-heir, or whether he only intended the will to apply to all the others. The latter opinion appears to be the more probable, on account of the special substitution which he made with reference to the father and son. 6Where a co-heir is given to a son under the age of puberty, who has also been substituted for him, he will be obliged to pay any legacies bequeathed under the substitution, just as if he had received a part of the estate absolutely, and another part of it conditionally. The same rule will not apply in case of the substitution of another, for he will bring about the application of the Lex Falcidia, just as if the heir had clearly been appointed under a condition in the first place; although the co-heir given to the son would certainly be entitled to the entire fourth of his share, for where a legacy was granted to Titius by the will, and the same property was given to Sempronius by the substitution, Sempronius will share the property with Titius. 7Where a father having two daughters, both under the age of puberty, made a pupillary substitution for the one who should survive, and the daughter who had not reached puberty died, being survived by her sister who had attained that age, it was held that the substitution was void, both with reference to the first daughter above mentioned, because she did not die last, as well as with reference to the second one, because she had reached the age of puberty. 8It was held that a substitution expressed in the following terms is not defective: “If my son should die before reaching the age of puberty, which I trust will not be the case, then let Titius be my heir in his stead and to his portion”; any more than if he had directed him to be substituted as his heir, after prescribing a certain condition; for where anyone is appointed an heir to certain property, and a co-heir has not been appointed, he will be entitled to the entire estate.

42The Same, Definitions, Book I. Where a man left two children his heirs who had not yet reached the age of puberty, and made a substitution for them as follows: “If both of them should die”, and both died at the same time, after the death of their father, the two estates will belong to the substitute; but if they died at different times, the substitute will find in the estate of the boy who died last that of his brother who died previously, but, according to the terms of the Falcidian Law, the estate of the first boy will not be included; the substitute cannot claim more than an eighth of the estate under the will; and the legacies, with whose distribution the substitute of the son who first died intestate was charged, become of no effect.

43Paulus, Questions, Book IX. A question arises in the following case. A certain man who had a son past the age of puberty that was deaf, obtained permission from the Emperor to appoint a substitute for him, and substituted Titius. The said deaf son married a wife after the death of his father and a son was born to him. I ask whether the will was broken. I answered that princes themselves are accustomed to explain rights which they have granted, but where the intention of the prince is examined in this case, it can be said that he only intended the right to be conceded to the father so long as his son remained in the same condition; and that, just as, according to the Civil Law, pupillary substitution is terminated by puberty, so the Emperor imitated this rule in the case of the son, who was incapable of making a will on account of his infirmity. For if he had made the substitution for a son who was insane, we would say that the will would cease to be valid when the son became of sound mind, because then he himself could make a will; and indeed the privilege bestowed by the Emperor would become unjust if we should hold that the will was valid after this, for it would deprive a man who was sane of the right to make his own will. Therefore it must be held that substitution is also annulled by the birth of a legal heir, because it makes no difference whether the son himself subsequently appointed another heir, or whether he received one by law; for it is not probable that either the father or the Emperor, in this instance, had in view the disinheritance of the son who was afterwards born. Nor does it make any difference in what way the privilege granted by the Emperor may interfere with the execution of the will, or whether it has reference to one, or to several persons. 1I also ask where a substitution is made as follows: “If my son should die under the age of ten years, let Titius be my heir; if he should die under the age of fourteen years, let Mævius be my heir”, and the son died at the age of eight years, will Titius be his sole heir by virtue of the substitution, or will Mævius also be one, because it is certain that the son died under the age of ten years, as well as under the age of fourteen. I answered that the father had a right to make a substitution for his son during the entire time before he attained the age of puberty, but puberty put an end to this right. The better opinion is that the time prescribed separately for each party should be observed, unless it is clearly evident that the will of the testator was opposed to this. 2Lucius Titius, while having children under his control, appointed his wife his heir, and substituted the children for her. The question arose whether the appointment of the wife was of no force or effect, for the reason that the children were not disinherited in this degree. I answered that the degree in which the children were passed over was of no importance, since the same parties were appointed as substitutes who were heirs under the will, that is to say, because the children do not annul the entire will, but only the degree mentioned which was not valid from the beginning; just as it has been determined that if a child is passed over in the first degree, he is disinherited in the second. But it makes no difference for what reason the institution of the second heir is valid, whether because the son was disinherited by his appointment, or because the son himself was appointed a substitute. 3Julius Longinus, a father, substituted for his children the heirs that he had appointed for himself as follows: “Whoever shall be my heir.” One of the heirs appointed had tacitly agreed to give a share of what he received to a person who was not capable of taking it, having been admitted to the substitution of the son under the age of puberty; what share should he be permitted to have, the one for which he was appointed, or the one which he took, in order that his share might be increased in the substitution. I answered that he who consents to a fraud against the law, by entering upon an estate, becomes the heir, nor does he cease to be such even though he be deprived of the property left to him under such circumstances. Hence, he can be the heir under the pupillary substitution only to the share to which he was appointed, for he is sufficiently punished for what he did contrary to law; and, indeed, I would say the same even though he ceased to be the heir. The same rule should be understood to apply to anyone who, after he had been appointed heir and entered upon the estate, is reduced to slavery, and is subsequently presented with his freedom, who is permitted to be admitted to the substitution left to him by the will; for although he has lost the inheritance to which he was entitled by his appointment as heir, still, by virtue of the substitution, he can receive the same share which he lost.

44The Same, Questions, Book X. Marcianus states that the principal will can neither be wholly or partly confirmed by pupillary substitution.

45The Same, Opinions, Book XII. Lucius Titius appointed as his heirs his legitimate son and a natural son, and substituted them for one another. The legitimate son, Titius, whom his father left only a year old, died after the death of his father without reaching the age of puberty, being survived by his mother, and his natural brother who was also his co-heir. I ask whether his estate will belong to his natural brother, by virtue of the substitution, or will it go to his mother. I answered that the substitution in question relates to the first case where the parties appointed are not heirs, and not to the second where one of the heirs died subsequently under the age of puberty; because double substitution cannot exist in the person of the natural son, and therefore the estate will belong to the mother of the legitimate son ab intestato. 1Paulus gave it as his opinion that, “If all the appointed heirs were substituted for one another, the portion of one of them who, after some of his co-heirs have died, rejected his share, will, by virtue of the substitution, belong to the heir alone who was living at the time”.

46The Same, Opinions, Book XIII. The father of a family having appointed his posthumous child his heir by his will, substituted his brother, Gaius Seius, for himself, or his son if he should die before reaching the age of puberty, and then substituted Titius for Gaius Seius, and afterwards said: “If my brother, Gaius Seius, whom I substituted in the first place, should be my heir, then I appoint Titius trustee.” I ask, if the son should be the heir of his father, and having died before the age of puberty, his brother should become the heir of the testator by virtue of the substitution, whether the trust must be discharged when it was created as follows: “If Gaius Seius, my brother, should be my heir”? I answered that the brother of the deceased, who was appointed or substituted in both cases, must deliver the property which the testator bequeathed, if the son should die before reaching the age of puberty, and that the meaning of the following words cannot be disputed: “If Gaius Seius should be my heir, then I desire the property to be given”, since it is a fact that he was the heir of the testator.

47Scævola, Opinions, Book II. A certain person had a son and a daughter, both under the age of puberty, and having appointed his son his heir, he disinherited his daughter, and substituted her for his son, “If the latter should die under the age of puberty”; and then he appointed his wife and his sister as substitutes for his daughter, if she should die before being married. I ask, if the daughter should die first, after having reached the age of puberty, and her brother afterwards, before reaching that age, whether the estate of the son would by the right of substitution belong to the wife and sister of the testator. I answered that, in accordance with the facts stated, it would not belong to them.

48The Same, Questions Publicly Treated. We own a slave in common; he is appointed an heir; and Mævius is substituted for him in case he should not be the heir. The slave accepts the estate by the direction of only one of his masters, and the question arises whether there is ground for the admission of the substitute, or not. The better opinion is that there is ground for his admission. 1“Let Titius be my heir. I give and bequeath Stichus to Mævius. Let Stichus be my heir, if Stichus should not become my heir, let Stichus be free and my heir.” In this instance, inquiry must first be made whether there is one degree or two, and whether the condition of the substitution is changed, or remains the same. And, indeed, the question frequently arises whether a party can be substituted for himself, and the answer is that where the condition of the appointment is changed he can be substituted. Therefore, if Titius is appointed heir, and if he should not accept he is ordered to become the heir, the substitution is of no force or effect. Where, however, a party is appointed an heir under a condition, but is substituted absolutely, the case is changed, since the condition upon which the appointment depends may not be fulfilled, and the substitution may be productive of some advantage to the heir. But if the condition should be fulfilled, there are two absolute appointments, and the substitution will have no force or effect. On the other hand, if anyone appoints an heir absolutely, and then substitutes him for himself under some condition, this conditional substitution is inoperative, nor is anything understood to be changed, since, if the condition had been fulfilled, there would be two absolute appointments of the same individual. According to this, the question stated is as follows: “Let Titius be my heir, I give and bequeath Stichus to Mævius; let Stichus be my heir, if Stichus should not be my heir, let him be free and be my heir”. We know that since Stichus was bequeathed and received his freedom by virtue of the same will, his freedom will take precedence, and if it does, the legacy will not be due, and he cannot enter upon the estate by order of the legatee, and therefore Stichus is not an heir and by virtue of the words which follow he is entitled to freedom; as it is held that there is but one degree of appointment. But what if Titius should not accept the estate? Stichus would begin to be free and an heir by virtue of the substitution. Hence, as long as he does not enter upon the estate by order of the legatee, it is understood that he does not become the property of the legatee on account of the legacy, and therefore it is certain that he is not an heir; but he becomes free and an heir by virtue of the following words: “If he should not be my heir, let Stichus be free and be my heir.” Julianus also approves of our opinion in his works. 2If a minor alienates a slave who has been substituted for himself, and the purchaser of said slave appoints him his heir with the grant of his freedom, will the substituted slave be entitled to the entire estate of the minor by reason of the substitution? If the minor should reach the age of puberty, the slave will become the necessary heir of the purchaser by virtue of his will, but if the minor should die before attaining that age, the slave will become free and his heir on account of the substitution, and also will become the necessary heir of the father of the minor, but he will be the voluntary heir of the purchaser.