Si a parente quis manumissus sit
(Concerning prætorian possession where a son has been manumitted by his father.)
1 Ulpianus libro quadragensimo quinto ad edictum. Emancipatus a parente in ea causa est, ut in contra tabulas bonorum possessione liberti patiatur exitum. quod aequissimum praetori visum est, quia a parente beneficium habuit bonorum quaerendorum: quippe si filius familias esset, quodcumque sibi adquireret, eius emolumentum patri quaereret. et ideo itum est in hoc, ut parens exemplo patroni ad contra tabulas bonorum possessionem admittatur. 1Enumerantur igitur edicto personae manumissorum sic: ‘in eo, qui a patre avove paterno proavove paterni avi patre’. 2Nepos ab avo manumissus dedit se adrogandum patri suo: sive manens in potestate patris decesserit sive manumissus diem suum obeat, solus admittetur avus ad eius successionem ex interpretatione edicti, quia perinde defert praetor bonorum possessionem atque si ex servitute manumissus esset: porro si hoc esset, aut non esset adrogatus, quia adrogatio liberti admittenda non est, aut si obrepserit, patroni tamen nihilo minus ius integrum maneret. 3Si parens vel accepit pecuniam, ut emanciparet, vel postea vivus in eum filius quantum satis est contulit, ne iudicia eius inquietet, exceptione doli repelletur. 4Est et alius casus, quo bonorum possessionem contra tabulas parens non accipit, si forte filius militare coeperit: nam divus Pius rescripsit patrem ad contra tabulas bonorum possessionem venire non posse. 5Liberos autem manumissoris non venire ad contra tabulas bonorum possessionem filii constat, quamvis patroni veniant. 6Patrem autem accepta contra tabulas bonorum possessione et ius antiquum, quod et sine manumissione habebat, posse sibi defendere Iulianus scripsit: nec enim ei nocere debet, quod iura patronatus habebat, cum sit et pater.
1 Ulpianus, On the Edict, Book XLV. A son who has been emancipated by his father is in the same condition, so far as prætorian possession contrary to the provisions of the will is concerned, as that of a freedman. This appears to the Prætor to be perfectly just, because the son obtains the advantage of acquiring property from his father; whereas, if he was under paternal control, and should acquire anything for himself, his father would reap the benefit of it. Hence, the rule was established that the father should be allowed to obtain prætorian possession contrary to the provisions of the will, just as a patron is permitted to do. 1Therefore, persons who have been manumitted are enumerated in the Edict as follows, “He who had been emancipated by his father, or by his paternal grandfather, or by his paternal great-grandfather.” 2Where a grandson, who has been manumitted by his grandfather, gives himself in arrogation to his father, even if he should die while still under paternal control, or should die after having been manumitted, his grandfather will only be admitted to the succession in accordance with the interpretation of the Edict; because the Prætor grants the possession of the estate, just as where a slave has been manumitted from servitude. If, however, this should be the case, or if the son should not be arrogated because the arrogation of a freedman is not permitted, or if it should be done fraudulently, the rights of the patron would, nevertheless, remain unimpaired. 3If a father has either received money to induce him to emancipate his son, or if, afterwards the son, during his lifetime, should pay him enough to prevent him from opposing his will; he will be barred by an exception on the ground of bad faith. 4There is another instance in which a father does not obtain ipossession of the estate of his emancipated son, contrary to the provisions of the will, and that is where the son happens to enter the army; for the Divine Pius stated in a Rescript that the father could not, under these circumstances, obtain possession of the estate of his emancipated son in opposition to the terms of the will. 5It is settled that the children of a father, who manumitted his son, cannot obtain possession of the estate of the latter, in opposition to the terms of the will; even though the children of a patron can do so. 6Julianus says that where a father has obtained possession of the estate of his emancipated son, in opposition to the terms of the will, he will retain the former privilege which he enjoyed without manumission; for he should not be prejudiced because he possessed the rights of a patron, as he is still a father.
2 Gaius libro quinto decimo ad edictum provinciale. Non usque adeo exaequandus est patrono parens, ut etiam Faviana aut Calvisiana actio ei detur, quia iniquum est ingenuis hominibus non esse liberam rerum suarum alienationem.
2 Gaius, On the Provincial Edict, Book XV. A father is not to be considered the equal of a patron to the extent that the Favian or Calvisian Action may be granted him, for the reason that it is unjust for freeborn men not to have unrestricted power to alienate their property.
3 Paulus libro octavo ad Plautium. Paconius ait: si turpes personas, veluti meretricem, a parente emancipatus et manumissus heredes fecisset, totorum bonorum contra tabulas possessio parenti datur: aut constitutae partis, si non turpis heres esset institutus. 1Si filius emancipatus testamento suo patrem suum praeterierit sive heredem instituerit, fideicommissa non cogetur pater praestare ex sua parte, quae ei debetur, etiamsi adierit hereditatem. sed et si filia vel neptis manumissa sit et pater vel avus praeteritus petat bonorum possessionem, eadem quae in filio dicenda sunt.
3 Paulus, On Plautius, Book VIII. Paconius says that if a son who had been emancipated and manumitted by his father should appoint some disreputable persons his heirs (as, for instance, prostitutes), possession of his entire estate contrary to the provisions of the will shall be given to his father; otherwise he would be entitled to only half of the estate, if a disreputable heir had not been appointed. 1If an emancipated son should pass his father over in his will, or should appoint him his heir, the father will not be obliged to execute any trust, so far as the share of the estate to which he is entitled is concerned, even if he enters upon it. Where, however, a daughter or a granddaughter is manumitted, and the father or grandfather, having been passed over in the will, demands prætorian possession of the estate, the same rule will apply as in the case of a son.
4 Marcellus libro nono digestorum. Patri qui filium emancipavit de his, quae libertatis causa imposita fuerint, praetor nihil edicit, et ideo frustra pater operas stipulabitur de filio.
4 Marcellus, Digest, Book IX. The Prætor makes no provision in the Edict with reference to a father who has emancipated his son, and imposed upon the latter certain conditions in consideration of granting him freedom; and therefore the father can enter into no valid stipulation as to any services to be rendered by his son.
5 Papinianus libro undecimo quaestionum. Divus Traianus filium, quem pater male contra pietatem adficiebat, coegit emancipare. quo postea defuncto, pater ut manumissor bonorum possessionem sibi competere dicebat: sed consilio Neratii Prisci et Aristonis ei propter necessitatem solvendae pietatis denegata est.
5 Papinianus, Questions, Book XI. The Divine Trajan compelled a father to emancipate his son whom he had treated badly, and in a way contrary to that dictated by paternal affection, and the son, having afterwards died, the father declared that he was entitled to the possession of his estate on account of having manumitted him. This, however, was refused him on the advice of Neratius Priscus and Aristo as the emancipation took place through necessity, because of the want of paternal affection.