1Ulpianus, On the Edict, Book XLI. If a dispute should arise as to whether a child under the age of puberty should be included among the descendants of the deceased, possession will be given it after proper cause is shown, just as if no controversy had arisen with reference to the matter; and, after investigation has taken place, the decision will be postponed until the time that the child arrives at puberty. 1If security for the minor is not given to him who raises the question, the Prætor orders him to be placed in possession of the estate along with the minor. 2Not only males, but also females descendants from males, are entitled to the benefit of the Carbonian Edict. 3In general, we say that those are entitled to the benefit of the Carbonian Edict who can obtain prætorian possession of an estate contrary to the provisions of the will; but those are not entitled to it who are excluded from obtaining such possession. 4If a child is made the subject of a controversy of this kind, namely: where it is denied that he should be included among the descendants of the deceased, and the question was raised not by a stranger, but by his own father; as, for instance, where a grandson alleges that his father was emancipated, and that he was retained under the control of his grandfather, and asks to be joined with his father, should the decision in this case be postponed? The better opinion is that it should be; for it makes very little difference who raises the controversy, as even if the testator should deny that he was included among his descendants, and he, nevertheless, did not disinherit him, there will be ground for the application of the Carbonian Edict. 5If anyone should deny not only that the child has a right to be included among the descendants of the testator, and should even allege that he is a slave, for instance, born of a female slave, Julianus says that there is ground for the application of the Carbonian Edict, which the Divine Pius also stated in a Rescript. For great care should be exercised with reference to those who are threatened with a serious wrong; as, if it were otherwise, any extremely bold man could inflict injury upon a minor under the age of puberty by relating many grave slanders and falsehoods about him. 6The same rule will apply, even where the deceased himself is said to have been a slave. 7There will also be ground for the application of the Carbonian Edict, where the Treasury raises the question as to the status of a minor under the age of puberty. 8Pomponius, in the Seventy-ninth Book of the Edict, says that where a son is appointed an heir, or is disinherited, the Carbonian Edict will not apply, even though it is denied that he is a son; because being, as it were, appointed heir, he has possession of the estate, even if he is not a son, or he will be excluded because of being disinherited, even if it should appear that he is a son; unless a posthumous child is appointed an heir, and, after his birth, it is denied that he is a son, although he is said to be under paternal control; in which case prætorian possession should only be given to him in proportion to the share of the estate to which he was appointed heir. 9He also holds that where anyone has disinherited his son, because he said that he was conceived in adultery, or where it was disputed as to whether he should be included among his children, he will be entitled to possession of the estate under this Section of the Edict; for, since he had been disinherited without giving any reason for it, he would not be entitled to possession of the estate. The same rule will apply where the following clause was inserted into a will, “Let anyone who says that he is my son be disinherited,” because a son is not disinherited in this way. 10If anyone should appoint his son his heir to a very small portion of his estate, as follows, “Let So-and-So, born of such-and-such a woman, be my heir,” and afterwards the said son should not admit that his father died intestate, and that he was his heir at law, it makes a difference whether his co-heirs deny that he is the son of the testator, or whether they say that the will is valid. If they say that the will is valid, the dispute should not be deferred, and the Carbonian Decree will not apply. If, however, they deny that he is the son of the testator, and allege that the estate belongs to them, as being the next of kin; possession of the estate will be given to the minor, and the decision of the controversy will be postponed until he arrives at the age of puberty. 11If the mother is accused of introducing a supposititious child, the question arises whether the controversy with reference to the civil condition of the child should be deferred for decision. Where only the condition of the child is in doubt, the question should be deferred until the age of puberty, because there may be reason to fear that it will not properly be defended. But where the mother herself is accused, as there is no doubt that she will, from the first moment, defend the civil status of the child, with the greatest good faith and constancy, there is no doubt that an investigation should be made, and if after the investigation it appears that the child was supposititious, every action for the recovery of the estate must be refused to it, and everything will remain in the same condition as if the child had not been appointed heir.

2Marcianus, Institutes, Book XIV. Although the woman who is said to have introduced a supposititious child may be dead, still, if there are any others implicated in the crime, an investigation should take place at once. When, however, there is no one who can be punished, because all those who participated in the offence are dead, the investigation must be deferred until the time of puberty, in accordance with the Carbonian Edict.

3Ulpianus, On the Edict, Book XIV. The Carbonian Edict is applicable to the prætorian possession of an estate contrary to the provisions of the will, as well as to the possession ab intestato; since in some instances, the application of the Edict may become necessary when prætorian possession in accordance with the terms of the will has been granted; for example, where the testator appointed an heir as follows, “Let my posthumous child, whether it be a boy or girl, be my heir,” and it is denied that the statement in the will is true. 1Where a question arises with reference to a trust or a legacy, the matter can be deferred until the time of puberty; as the Divine Pius stated in a Rescript addressed to Claudius Hadrian. 2Although it is certain that prætorian possession under the Carbonian Edict is not promised to an appointed heir, still, there is no doubt whatever that any question as to his condition must be postponed until he reaches puberty. Hence, if at the same time a controversy arises with reference to the estate of his father and his own condition, this Edict will be applicable. Where, however, only his civil condition is in dispute, the question will be postponed until the time of puberty, not under the Carbonian Edict, but in accordance with the Imperial Constitutions. 3The Carbonian Edict gives no relief to children who have arrived at puberty, even though they are under twenty-five years of age. If, however, a child, who has arrived at puberty, represents himself as being under that age, and obtains prætorian possession of the estate, it must be said that the decree is void. For even if he was under the age of puberty, as soon as he arrives at that age, the benefit of the possession of the estate will terminate. 4In cases of this kind, an investigation is instituted to prevent possession of an estate from being given, if the deceit of those who demand possession of property in behalf of children should be clearly established; therefore, where possession is demanded under the Carbonian Edict, the Prætor should immediately take cognizance of the case. If he finds that it can be easily decided, and it is positively proved that the child is not a son, he can refuse to grant it Carbonian possession of the estate. But when he finds that the matter is involved in doubt, that is to say, that there is some slight evidence in favor of the child, and it does not clearly appear that he is not the son of the testator, he shall grant him Carbonian possession of the estate. 5Two causes exist for this investigation: one of them is to determine whether Carbonian possession which confers the advantage of enabling the minor to obtain prætorian possession, just as if no controversy had arisen, shall be granted; and the other is, to ascertain whether a decision ought to be rendered at once, or deferred until the age of puberty. The Prætor should carefully examine whether it is advantageous for the minor to have the decision rendered at once; or whether it will be better to postpone it until he reaches the age of puberty; and this he must, by all means, learn from the relatives, the mother, and the guardians of the minor. Suppose, for instance, that there are certain witnesses who, if the decision of the case is postponed, may either change their minds, or die, or whose testimony will not have the same force after a long period of time. Or, suppose there is some old midwife, or certain female slaves who can tell the truth with reference to the child; or that certain documents essential to his success are in existence; or that there are other proofs, and the minor will suffer greater injury if the examination is deferred than he will obtain benefit if the case is not decided at once. Suppose that the minor cannot give security, and that those who have been permitted to obtain possession of the estate are the persons who raised the controversy with reference to it, and who can abstract, change, or destroy much of the property belonging to the same; it would be either foolish or unjust for the Prætor to defer the matter until puberty, to the serious disadvantage of him who desires the matter to be disposed of. The Divine Hadrian stated in a Rescript: “Where the decision is ordinarily deferred until the age of puberty, this is done for the benefit of the minors, in order that this condition may not be imperiled before they are able to protect themselves. Moreover, if they have persons by whom they may be properly defended, and if it is to the interest of the said minors that the case should be quickly brought to trial, and a decision rendered, and the guardians of the minors desire it to be heard, what has been devised for the benefit of the minors should not be employed against them, and their condition remain in suspense when it can be established beyond a doubt.” 6If the mother of the minor, after being accused of having introduced a supposititious child, gains her case, the question as to the condition of the child may still remain unsettled; for example, it may be alleged that it was not begotten by the deceased, or, if it was, that it was not born in wedlock. 7If the person who disputed the condition of the child, and alleged that he himself was the only son, should die, and his mother should become his heir, and raise the same controversy with reference to the minor, that her own son did, stating that he was born of another woman; that is to say, if she should deny that he was the child of the deceased, and therefore that she herself was entitled to the entire estate of the deceased son, as his heir, Julianus says that a decision should not be rendered until the age of puberty, because it makes no difference whether the person who raises the question does so in his own name, or in that of the estate. It is evident that if the mother should admit that the child is the son of the deceased, and therefore claims for herself only half of the estate of the father, the decision of the case should not be deferred until the time of puberty; for she does not dispute the claim of the minor to the estate of his father, but to that of his brother. 8Julianus says, in the same place, that if a dispute arises with reference to the status of two minors under the age of puberty, and one of them reaches that age, they should wait until the other also arrived at puberty, so that the condition of both may be determined in such a way that the rights of the one who had not arrived at puberty, may not be prejudiced through a decision rendered against the one who had reached that age. 9It makes little difference whether the claimant is a minor under the age of puberty, or the possessor of the estate who raises the question as to the condition of the minor, for whether he is in possession, or demands it, the decision must be deferred until the time of puberty. 10Where two minors under the age of puberty raise a question as to the condition of one another, it makes a difference whether one of them alleges that he is the only son, or whether the other alleges that he also is a son. For if one says that he is the only son, it must be held that the decision of the case should be postponed until both of them arrive at puberty, whether the claimant or the possessor is the one who gives rise to the controversy. If, however, one alleges that he is the only son, and the other says that he is also a son, and the former should be the first to reach the age of puberty, the decision must be deferred on account of the youth of the one who asserts that he is a son; but this must be done partially and not entirely, for there is no dispute with reference to half of the estate. Where he who declares that he is also a son is the first one to attain the age of puberty, and he who alleges that he is the only son is under that age, the decision shall not be deferred; for there is no question with reference to the condition of the latter, since he is the one who makes the contest, as the one who has reached puberty, while he says that he is a son, does not deny that the other is also a son. 11Where a slave who is ordered to be free, and is appointed an heir, disputes the status of a minor, who is said to be the son of the testator, and has broken the will of his father, Julianus says that the decision with reference to both the estate and the bequest of freedom should be deferred until the age of puberty; for neither of these questions can be determined at once without prejudicing the rights of him who says that he is the son of the testator. Other matters with reference to testamentary bequests of freedom, and which are pending, shall also be postponed until the time of puberty. 12Where a minor under the age of puberty appears, and alleges that he is the son of the deceased, and debtors to the estate deny that this is true, but say that the property of the deceased intestate belongs to a relative, who, for instance, is beyond seas, the child must have recourse to the Carbonian Edict; but the interest of the absent person must be consulted by requiring security to be given. 13The Prætors exert themselves to place in actual possession those to whom possession has been given under the Carbonian Edict. If, however, a possessor under the Carbonian Edict should attempt to claim the estate, or any particular property belonging to the same, Julianus, in the Twenty-fourth Book of the Digest, very properly says that he should be barred by an exception, for he ought to remain content with the privilege of possession which the Prætor in the meantime has granted him. Therefore, if he wishes to claim the estate, or any property forming part of the same, he says that he must do so by means of a direct action in the capacity of heir; so that, after his application, it may be determined whether he is an heir, and is included among the children, in order that the presumption of Carbonian possession of the estate may not injure his adversaries. This opinion is both reasonable and just. 14Moreover, this possession is granted within the year, just as ordinary ones which are given to children. 15It is, however, necessary that he who alleges that he is a son should not only obtain Carbonian possession of the estate, but should also demand the ordinary prætorian possession. 16The periods necessary for obtaining both possessions run separately. The one which has for its object ordinary prætorian possession runs from the time when the son knew that his father was dead, and had the power to demand prætorian possession of the estate; and that of Carbonian possession runs from the time when the son knew that his condition was disputed.

4Julianus, Digest, Book XX. Therefore, if a child does not demand possession of the estate under the First Section, he can, in some instances, obtain possession under the following Section of the Carbonian Edict, and sometimes he cannot do so; for if a controversy should arise immediately after the death of the father as to whether he could demand possession of the estate with the other children, the year will be considered to have expired at the same time, so far as both periods are concerned. If, however, after a certain term has elapsed, he should ascertain that his rights were disputed, he can, even if the time has expired during which he could have demanded possession of the estate under the First Section of the Edict, demand it under the Second Section; and when he has obtained it, he can always avail himself of the possessory actions. But where judgment has been rendered against him after he has reached puberty, the actions will be refused him.

5Ulpianus, On the Edict, Book XLI. If he who institutes a contest against the minor is one of the children of the deceased, the result will be, whether he whose condition is in dispute gives security, or whether he does not do so, he will still be placed in possession. 1If the child under the age of puberty is not defended, and therefore his adversary is placed in possession, who will have the right to bring the actions in which the estate is interested? Julianus, in the Twenty-fourth Book of the Digest, says that a curator should be appointed who can take charge of everything, and bring the actions. He, moreover, says that the person who is placed in possession with the minor is not forbidden to institute proceedings against the curator, for in this way no injury is done to the estate, as he can legally bring his actions against the minor himself, if he has furnished security. 2Whenever a minor under the age of puberty does not give security, his adversary is placed in possession, whether he himself gives security or not. If his adversary wishes the administration of the property to be entrusted to him, he should furnish security to the minor; but if he does not do so, a curator should be appointed by whom the property shall be administered. Again, if the adversary should give security, he ought to sell any property which is liable to be either destroyed or depreciated by delay, and he must also collect all debts from the debtors, if they will be released by lapse of time; the remainder of the estate he shall keep possession of along with the minor. 3Moreover, let us see whether he who is placed in possession under the Carbonian Edict can diminish the estate in order to provide for his own support. If the minor has given security, he can use part of the estate for his support, whether a decree authorizing him to do so has been granted, or not; and he must return the remainder of the estate to the person who claims it. If, however, he is unable to give security, and it is evident that he cannot otherwise support himself, he should be placed in possession in order to enable him to obtain what is necessary for his subsistence. It ought not to appear surprising that a person, who may not prove to be the son of the deceased, is allowed to use part of the property for his support, since an unborn child is placed in possession of the entire estate by the Edicts, and support is given to his mother for the benefit of a child that may not be born; and greater care should be exercised to prevent the son from dying from hunger than to prevent a smaller amount of property coming into the hands of the claimant, if it should be decided that the child was not the son of the deceased. 4I think that it should, by all means, be asked of the Prætor that the documents of the estate shall not be placed in the hands of the adversary, if he obtains possession; otherwise, the minor may be defrauded either by his adversary obtaining information through them, or by enabling him to suppress them. 5When neither the minor nor his adversary gives security, a curator should be appointed who shall administer the property and deliver it to whoever gains the case. What, however, must be done if the guardians of the minor demand the administration? They should not be heard unless they give security in the name of the minor, or unless they themselves are appointed curators.

6Paulus, On the Edict, Book XLI. The question arises, can a decree be rendered with reference to the property of a mother? And, in fact, a decree cannot be rendered in this instance, under the Carbonian Edict; for a long delay should be granted which will defer the decision until the age of puberty. 1Julianus says it is clear that if a controversy arises with reference to the estates of the father and mother, at the same time, or even with reference to that of a brother, the decision of the controversy must be postponed until the time of puberty. 2There will be ground for the application of this Edict, even if the children should obtain prætorian possession ab intestato; even when they demand it under the last Sections of the Edict, where heirs at law are called to the succession as they are proper heirs, or under that Section by which possession is granted to cognates. 3This Edict also applies where a controversy exists both with reference to the status of the minor, and his right to the estate; for if only his status is involved, as, for instance, where he is said to be a slave, and there is no dispute as to the estate, under such circumstances the question of his freedom should be immediately determined. 4If he who raises a controversy concerning the minor is placed in possession with him at the same time, he should not be supported out of the property of the deceased, nor can he take anything from the estate, for this possession is only given him in lieu of security. 5Not only should support be furnished the minor, but also money for his education, and all other necessary expenses should be paid in accordance with the amount of the estate. 6The question arises whether he who has been placed in possession under the Carbonian Edict can, after he arrives at puberty, take the part of plaintiff in court. It has been established that he can take the part of defendant, especially if he gives security. Where he does not give security, and is not prepared to do so, suit can be brought against him as the possessor of the estate. If he does not then furnish security, possession will be transferred to his adversary, provided that he banishes it; just as if the estate had been, from that moment, claimed by him for the first time.

7Julianus, Digest, Book XXIV. If it is denied that a minor has been legally adopted, and for that reason his right to the estate of his father is disputed, it will not be unjust for a decree similar to those issued under the Carbonian Edict to be rendered. 1Likewise, where a minor, under the age of puberty, is said to have been given in adoption, and hence his right to the estate of his natural father is denied, since in this case the question arises whether he is entitled to the estate as a son, there will be ground for the application of the Carbonian Edict. 2If, however, we suppose that the son is disinherited, it will not be necessary to postpone the decision of the controversy until the age of puberty, because the question does not involve the right of the son himself, but the validity of the will. 3If the mother of the person whose freedom and claim to the estate of his father are in dispute is called into court to testify in a suit brought to establish his freedom, the decision with reference to his mother should not always be deferred to the time of puberty; for there are instances where the cases of those who are said to be supposititious children are determined without delay. 4Whenever a decree is rendered under the Carbonian Edict, the matter is considered to be in the same condition in which it would have been if no controversy had arisen with reference to the person who obtained prætorian possession of the estate. 5Again, where two brothers have been placed in possession under this decree, and one of them refuses to defend his share of his father’s estate, the other will be compelled to defend the whole of it, or abandon it all to the creditors. 6Sometimes, a disinherited son obtains possession of the estate under the Carbonian Edict, where he does not demand prætorian possession contrary to the provisions of the will, but, on the ground of intestacy, which is granted to children; because he denies that his father’s will is such that prætorian possession can be given under it, as it is alleged that he is not his son. 7If a minor demands possession of the estate of a freedman of his father, and it is denied that he is the son of the patron, for the reason that there is no dispute with reference to the estate of his father, the determination of the controversy should not be postponed. If, however, this controversy should arise after a decree under the Carbonian Edict had been rendered, its determination should be deferred until the time of puberty. 8The question arose whether a minor could have possession under the Carbonian Edict at the same time with the appointed heirs, who obtained it in accordance with the terms of the will. I answered that if he should not be the son, or had not obtained prætorian possession of the estate contrary to the provisions of the will, on the ground of intestacy, he could obtain it under the Carbonian Edict, at the same time that the appointed heirs acquired prætorian possession of the estate in accordance with the provisions of the will.

8Africanus, Questions, Book IV. The person whom I declare to be my son, and under my control, died. A minor, under the age of puberty, appeared, who alleged that the deceased was the father of a family, and that the estate belonged to him. It was held that the decree should be rendered. 1Again, my emancipated son died intestate, leaving a son under the age of puberty, who alleged that he was the direct heir. I maintain the latter was conceived before emancipation took place, and, for this reason, was under my control, and that the estate of the emancipated son belonged to me. It was established that this child was the son of the deceased, but a question arose as to his legal condition, that is to say, whether he was under the control of his father, or not; and there is no doubt whatever that the Carbonian Edict is applicable in this instance.

9Neratius, Parchments, Book VI. Labeo stated that whenever a minor is said to be supposititious, and a controversy arises with reference to his right to his father’s estate, the Prætor should be careful to place him in possession of the same. I think that Labeo intended this to be applicable to a child born after the death of his father, who alleges that he was his son, even though the deceased thought that he had no children; for he who has been acknowledged by the person whose estate is in dispute has a more equitable claim to it than a posthumous child.

10Marcellus, Digest, Book VII. Where a woman, to whom an oath has been tendered by the heir, swears that she is pregnant, possession of the estate should be granted under the Carbonian Edict, or it should be refused if she tendered the oath to the heir; for possession should be given after proper cause has been shown to prevent the heir from being prejudiced if it should be given; or if it should be denied, to avoid depriving the minor of his legal rights.

11Papinianus, Questions, Book XIII. There is no ground for the application of the Carbonian Edict, where the son, whose civil condition is contested, cannot become the heir without the intervention of the Prætor; for example, if he has been appointed. The same rule applies where it is certain that he still cannot be the heir, even though he may be the son; as, for instance, if Titius was appointed heir, and a posthumous child or a disinherited minor should be denied to be the son of the testator. Nor does it make any difference what interest the minor may have in being proved to be the son, with reference to other matters, for example, in order to obtain the property of his brother by another mother; or to acquire rights over freedmen and burial places; for it is established that these cases do not come under the Carbonian Edict.

12The Same, Questions, Book XIV. An appointed heir, against whom a minor son who is said to be supposititious demands prætorian possession under the First Section of the Edict, as in the case of an heir at law, cannot, in the meantime, obtain possession in accordance with the provisions of the will. If, however, in the interim, either the appointed heir, or he who is entitled to possession as the heir at law, should die, relief must be granted to his heirs. For what if they had not been able to enter upon the estate, because the law prevented them from doing so, or on account of the decision of the controversy being doubtful?

13Paulus, Opinions, Book XI. Titia had a posthumous child after the death of her husband, and Sempronius brought an accusation of adultery against her before the Governor of the province. I ask whether trial of the accusation of adultery should be deferred until the age of puberty, in order that the rights of the posthumous child may not be prejudiced. Paulus answered that if there was no question as to the right of the minor to the estate of her father, her guardians have no reason to defer the trial for adultery until their ward reaches the age of puberty.

14Scævola, Opinions, Book II. The question arises whether a minor under puberty has obtained possession of an estate by the Carbonian Edict, and reaches that age before the possession has been transferred to him, can perform the duties of plaintiff. The answer was that he must introduce proof of any claim which he makes against the possessor.

15Hermogenianus, Epitomes of Law, Book III. This possession will benefit the minor if security is furnished not only to obtain actual possession, but also to recover property, to collect debts, to give dowries, and to do everything else which we have already stated is liable to contribution in collation.

16Paulus, On the Edict, Book XLI. Just as security is given to an emancipated son with reference to the estate of his father, so it must also be given to a minor with reference to the property which he himself places in collation.