De bonorum possessione contra tabulas
(Concerning the prætorian possession of property contrary to the provisions of the will.)
1 Ulpianus libro trigesimo nono ad edictum. In contra tabulas bonorum possessione liberos accipere debemus sive naturales sive adoptivos, si neque instituti neque exheredati sunt. 1Vocantur autem ad contra tabulas bonorum possessionem liberi eo iure eoque ordine, quo vocantur ad successionem ex iure civili. 2Haec autem clausula etiam ad postumos videtur pertinere. 3Sed et si ab hostibus postliminio redierint filii, Pomponius putat ad contra tabulas bonorum possessionem eos admitti. 4Si ex tribus filiis unus ab hostibus captus sit, duobus, qui sunt in civitate, bessis bonorum possessio competit. 5Idem et in postumo: nam quamdiu postumus speratur, in ea causa est, ut partem faciat. 6Et sui iuris factos liberos inducit in bonorum possessionem praetor (sive igitur emancipati sunt sive alias exierunt de patris potestate, admittuntur ad bonorum possessionem): sed adoptivi patris non potest: ut enim admitti possit, ex liberis esse eum oportet. 7Qui habebat filium, habebat et nepotem ex eo, filium emancipavit et adoptavit in locum nepotis, deinde emancipavit: quaeritur an nepoti obstet. et mihi magis videtur hunc nepotem non excludi, sive pater eius in adoptione mansisset quasi nepos sive emancipatus est: puto enim et emancipato patre nepotem quoque cum patre suo ex edicto admitti. 8Filium habuit et ex eo nepotem: filius emancipatus vel in potestate manens deportatus est: quaeritur, an nepoti noceat. et verius est in utroque casu nepotem admittendum: deportatos enim mortuorum loco habendos. 9Si et pater et filius deportati sint et ambo restituti, dicemus ad bonorum possessionem admitti filium. sed et si filius in metallum damnatus vel alia poena, quae servum efficit, restitutus sit, nihilo minus admittetur: aliter non.
1 Ulpianus, On the Edict, Book XXXIX. We must understand the term “children” when used with reference to the prætorian possession of an estate contrary to the provisions of the will, to mean either natural or adopted children, where they have either been appointed heirs, nor disinherited. 1Moreover, children are called to the prætorian possession of an estate contrary to the provisions of the will by the same right, and in the same order, in which they are called to the succession under the Civil Law. 2This general principle is also held to apply to posthumous children. 3Pomponius thinks that where children return from captivity by the enemy, and enjoy the right of postliminium, they can be admitted to prætorian possession contrary to the provisions of the will. 4Where one of three sons has been taken prisoner by the enemy, the two remaining ones who are at home will be entitled to prætorian possession of two-thirds of the estate. 5The same rule applies to a posthumous child, for as long as his birth is expected, he will be entitled to a share of the estate. 6The Prætor gives possession of property to children who are their own masters. For if they have been emancipated, or released from parental control in some other manner, they are allowed to acquire possession of the estate; but this is not the case with an adopted child, since, in order for it to be admitted to prætorian possession, it must be included in the number of children. 7A certain man had a son, and a grandson by the latter. He emancipated his son, and adopted him instead of his grandson, and then emancipated him a second time. The question arose whether he prejudiced the rights of the grandson. The better opinion seems to me to be that the grandson was not excluded, as his father either remained adopted as a grandson, or was emancipated. For I think that the father, having once been emancipated, the grandson, together with his father, should, under the terms of the Edict, be entitled to possession of the estate. 8A man had a son, and by him a grandson; the son was emancipated, or, having remained under his father’s control, was banished. The question arose whether this would prejudice the rights of the grandson. The better opinion is that, in either instance, the grandson should be permitted to have prætorian possession of the estate, for persons who are banished are considered to be dead. 9Where a father and his son were both banished, and both regained their rights, we say that the son ought to be admitted to prætorian possession of the estate. Where, however, the son was sentenced to the mines, or to any other punishment equivalent to servitude, and was afterwards restored to his rights, he will, nevertheless, be admitted to prætorian possession of the estate; but this will not be the case if he should not be restored to his former condition.
2 Hermogenianus libro tertio iuris epitomarum. Idemque est et si pater poenae et servus efficiatur et postea restituatur.
2 Hermogenianus, Epitomes of Law, Book III. The same rule will apply if the father should be condemned to penal servitude, and should afterwards regain his rights.
3 Ulpianus libro trigesimo nono ad edictum. Non tantum autem ipsi emancipati admittuntur ad bonorum possessionem, verum etiam hi quoque, qui ex his nati sunt. 1Si duos habens nepotes alterum emancipatum loco filii adoptaverit, videndum, an solus ille quasi filius admittatur: quod ita scilicet procedit, si quasi patrem eius nepotis, quem retinuerat, sic adoptaverit: melius est autem dicere posse eum solum ad bonorum possessionem pervenire. 2Sed si sit hic nepos emancipatus, verum est dicere non admitti eum quasi filium: hic enim quasi filius non est ex liberis, cum iura adoptionis emancipatione finita sint. 3Si filium habens et ex eo nepotem in locum filii nepotem adoptavero, ambo admittentur: plane si fuerit emancipatus nepos, non admittetur, quia pater eum praecedit. 4Si quis post emancipationem quaesitum sibi filium patri suo in adoptionem dederit in locum filii, aequissimum est ei praestari quod cuivis adrogato filio, idcircoque patri suo iungendus est. sed si emancipatus hic nepos post adoptionem proponatur, aequissimum erit eum abstinere (recipit enim locum suum) nec debet patri suo iungi. 5Si emancipatus filius uxore non ex voluntate patris ducta filium fuerit sortitus, dein nepos patre iam mortuo ad bonorum possessionem avi velit venire, admittendus est ad eam: non enim per rescissionem is, qui filius iustus est, efficietur non filius, cum rescissio, quo magis admittantur, non quo minus, adhibeatur. nam etsi tam ignominiosam duxerit uxorem filius, ut dedecori sit tam ipsi quam patri mulierem talem habere, dicemus et ex ea natum ad bonorum possessionem avi admitti, cum possit avus iure suo uti eumque exheredare: nec enim minus in hoc nepote is, qui de inofficioso cogniturus est, quam merita nepotis patris eius delicta perpendet. 6Si emancipatus filius praeteritus ante petitam bonorum possessionem adrogandum se dederit, amittit contra tabulas bonorum possessionem. 7Si quis filio suo emancipato nepotem, quem ex eo retinuerat, dederit in adoptionem, nepos iste ad contra tabulas bonorum possessionem avi sui admittitur patre eius ante defuncto, quia in eius est familia, qui et ipse admitti potuit ad bonorum possessionem contra tabulas. 8Idemque est et si emancipatus filium, quem post emancipationem quaesierat, patri suo in adoptionem dederit et decesserit: nam et hic nepos iste ad bonorum possessionem patris sui admitti debet, quasi non sit in alia familia. 9Si pater alicuius pervenerit in adoptivam familiam, filius non, an patris sui in adoptiva familia mortui bonorum possessionem accipere possit? et arbitror humaniorem esse hanc sententiam, ut filius hic, quamvis non sit in eadem familia, in qua pater, ad bonorum possessionem tamen eius admittatur. 10Liberi, qui institui heredes iure non possunt, nec contra tabulas bonorum possessionem petere possunt. haec autem verba ‘institui non possunt’ ad mortis tempus referuntur. 11Si quis ex liberis heres scriptus sit, ad contra tabulas bonorum possessionem vocari non debet: cum enim possit secundum tabulas habere possessionem, quo bonum est ei contra tabulas dari? plane si alius committat edictum, et ipse ad contra tabulas bonorum possessionem admittetur. 12Sed si sub condicione scriptus sit, bonorum possessionem contra tabulas accipere non potest, et ita Iulianus quoque libro vicesimo tertio digestorum scripsit. quid ergo, si defecerit condicio? verum est eum contra tabulas accipere bonorum possessionem. 13Si sub ea condicione filius emancipatus heres sit institutus, quae in ipsius potestate non est, quia scriptus heres est, bonorum possessionem secundum tabulas accipere potest et debet, nec contra tabulas potest: et si forte defecerit condicio, tuendus erit a praetore in tantum, quantum ferret, si contra tabulas bonorum possessionem accepisset. 14Sed et si nepos sub huiusmodi condicione scriptus sit heres, idem erit dicendum. 15Si quis ex liberis non sit scriptus heres, sed servus eius scriptus sit eumque iusserit adire hereditatem, denegari ei debet bonorum possessio contra tabulas. 16Idemque est et si legatum relictum sibi vel servo suo elegerit: nam et hic dicimus bonorum possessionem contra tabulas debere denegari.
3 Ulpianus, On the Edict, Book XXXIX. Not only are emancipated children themselves admitted to the prætorian possession of property, but also their children as well. 1Where a man has two grandsons, and after emancipating one of them adopts him instead of his son, let us see whether he alone will be entitled to prætorian possession as a son. This is based upon the presumption that the deceased adopted the said grandson as his son, and as the father of the other grandson whom he retained under his control. In this case it is better to hold that he alone will be entitled to possession of the estate under the Prætorian Law. 2But if the said grandson should be emancipated, it is preferable to conclude that he will not be entitled to possession in the capacity of a son. For this so called son is not included in the number of children, as his right acquired by adoption has been lost by emancipation. 3If I have a son, and by him a grandson, and adopt the grandson instead of the son, both will be entitled to prætorian possession; but it is clear that if the grandson should be emancipated he will not be permitted to have possession because his father takes precedence of him. 4If anyone, after having been emancipated, should give his son to his father to be adopted as his own son, it is perfectly just that all rights to which any other arrogated child is entitled should be conceded to him, and therefore he ought to be joined with his father, when prætorian possession of an estate is granted. If the said grandson should be emancipated after his adoption, it will be perfectly just for him to be excluded, for then he resumes his proper place, and should not be joined with his father. 5If an emancipated son marries a woman without the consent of his father, and a child is born to him, and his father having died, the said grandson applies to be placed in possession of the estate of his grandfather, his application should be granted. For, by setting aside the emancipation by the Prætor, a legitimate son does not lose his rights as such; for a rescission of the emancipation is made in order that the children may, the more readily, obtain prætorian possession of the estate, and not be excluded from it. And even if the son should marry a woman of such bad character that marriage to her would be dishonorable to himself, as well as to his father, still, we say that a child born of the said woman should be permitted to obtain possession of the property of the estate, as his grandfather could have availed himself of his right to disinherit him. In the decision of a case where the will has been attacked as inofficious, the magistrate who has jurisdiction, in rendering judgment must weigh the merits of the grandson as well as the offences of the father. 6Where an emancipated son, who was passed over, gives himself to be arrogated before an application for prætorian possession of the estate is made, he loses his right to demand possession contrary to the provisions of the will. 7Where anyone gives his grandson, whom he has under his control, in adoption to his emancipated son, the father of said grandson will be permitted to take possession of the estate of the grandfather, contrary to the provisions of the will, if his father is already dead, because he belongs to his family; and he himself can be permitted to take possession of the estate contrary to the provisions of the will. 8The same rule applies where an emancipated son gives his own son, who was born after his emancipation, to his father, in adoption, and then dies; for, in this instance, the said grandson should be permitted to acquire possession of the estate of his father, just as if he did not belong to another family. 9Where a father enters a family by adoption, and his son does not, can the son acquire possession of the estate of his father who died while a member of the adoptive family? I think that the more equitable opinion is, that the son, although he may not belong to the same family as his father, should still be permitted to take possession of the property of his estate under the Prætorian Law. 10Children who cannot legally be appointed heirs are not entitled to demand possession of an estate contrary to the provisions of the will. The words, “Cannot be appointed,” refer to the time of the death of their father. 11Where one of several children is appointed heir, he should not be permitted to take possession of the estate in opposition to the provisions of the will. For if he was entitled to possession under the will, what good would it do to give him possession in opposition to it? It is clear that, if another child should have recourse to the Edict, he would be entitled to possession contrary to the provisions of the will. 12Where, however, anyone is appointed heir under a condition, he cannot obtain possession of the estate in opposition to the will; and this was stated by Julianus in the Twenty-third Book of the Digest. But what if the condition should not be complied with? It is true that then he could obtain possession contrary to the provisions of the will. 13If an emancipated son should be appointed heir under a condition which it is not in his power to comply with, he can receive prætorian possession of the estate contrary to the provisions of the will; and he ought to receive it, because he was appointed heir, but he cannot obtain it contrary to the provisions of the will. If, however, the condition should not be fulfilled, he must be protected by the Prætor to the same extent as if he had obtained possession contrary to the provisions of the will. 14Even if a grandson is appointed heir under a condition of this kind, the same rule will apply. 15Where one of several children is not appointed heir, but his slave is appointed, and he orders him to accept the estate, possession contrary to the provisions of the will should be denied him. 16The same rule applies if the child should prefer to take what was left to him, or to his slave; for, in this instance, the possession of the estate contrary to the provisions of the will should be refused him.
4 Paulus libro quadragesimo primo ad edictum. Illud notandum est, quod bonorum possessio contra tabulas quae liberis promittitur locum habet, sive quis heres exstiterit sive non: et hoc est quod dicimus contra ipsum testamentum liberis competere bonorum possessionem: quod in patrono contra est. 1Si quis filium quem in potestate habuit instituerit heredem vel exheredaverit et ex eo nepotem omiserit, bonorum possessioni locus non est, quia non esset nepos suus heres futurus. eadem sunt et in sequentibus gradibus. 2Ad testamenta feminarum edictum contra tabulas bonorum possessionis non pertinet, quia suos heredes non habent. 3Si quis eum qui in utero est praetermiserit, etiam nondum nato eo alius qui heres institutus est bonorum possessionem contra tabulas admittere potest, quia iniquum est neque quasi scriptum posse petere bonorum possessionem, quamdiu contra tabulas peti potest, nec contra tabulas, quamdiu non nascitur praeteritus: ut et si ante moriatur, bonorum possessionis beneficium ad heredem transmittat. quod maxime necessarium est in filio emancipato scripto herede, qui nec hereditatem interim adire potest.
4 Paulus, On the Edict, Book XLI. It should be noted that the possession of property contrary to the provisions of the will is promised to children whether there is an heir, or not. And this is the reason why we say that the children have a right to the possession of the estate in opposition to the will itself. The contrary rule applies to the case of a patron. 1Where anyone appoints an heir whom he has under his control, or disinherits him, and passes over a grandson by him, there is no ground for the application of the Prætorian Law, because the grandson will not be his legal heir. This rule is also applicable to more distant degrees of relationship. 2The Edict granting possession contrary to the provisions of a will does not apply to the wills of women because they have no heirs-at-law. 3Where an unborn child is passed over, another child, who has been appointed heir to his father, can be permitted to take possession of the property of the estate, even before the birth of the child first mentioned; because it would be unjust for an heir, who was not appointed, to claim possession of the estate, so long as such possession can be demanded contrary to the provisions of the will, and possession cannot be granted contrary to the provisions of the will, as long as the child who has been passed over is not yet born; and even if he should die before birth he will, nevertheless, transmit the right of possession of the estate to his heir. This is especially necessary where an emancipated child has been appointed heir, as, in the meantime, he cannot enter upon the estate.
5 Iulianus libro vicesimo quarto digestorum. Sed et si decesserint, antequam peterent bonorum possessionem, non est iniquum praetorem decernere heredibus eorum salvum fore commodum bonorum possessionis secundum tabulas vel contra tabulas.
5 Julianus, Digest, Book XXIV. If, however, the children should die before demanding prætorian possession of the estate, it will not be unjust for the Prætor to decide that their heirs shall have the advantage of possession, either in compliance with the provisions of the will, or in opposition to the same.
6 Paulus libro quadragesimo primo ad edictum. Si emancipatus filius nepotem procreaverit et ita decesserit, deinde avus eius, nepos ad avi bonorum possessionem venire potest. 1Quod si et filium et nepotem emancipaverit, vivente quidem filio nepos non veniet, post mortem autem eius ad bonorum possessionem avi veniet. 2Nepote quoque solo emancipato et avo mortuo, deinde patre eius, nepos praeteritus accipiet patris bonorum possessionem, quia suus heres esset futurus patri, si potestate avi non exisset. 3Filio emancipato si nepos retentus sit et utrique praeteriti, utrique accipient bonorum possessionem. 4Si filius emancipatus in adoptiva familia nepotem sustulerit, ne nepos quidem ad bonorum possessionem avi naturalis veniet. sed et si emancipatus filius procreatis nepotibus in adoptionem se dederit, ut eum filii sequantur, idem erit. plane si is, qui apud adoptivum avum procreatus est, emancipatus sit, veniet ad bonorum possessionem avi naturalis. adoptio tamdiu nocet, quamdiu quis in familia aliena sit. ceterum emancipatus ad bonorum possessionem parentium naturalium venit, sed emancipatus vivis eis, non etiam post mortem eorum: hoc enim verius est post mortem eorum emancipatum non admitti.
6 Paulus, On the Edict, Book XL. Where an emancipated son has a son and then dies, and the grandfather dies afterwards, the grandson will be entitled to prætorian possession of the estate of his grandfather. 1Where the grandfather has emancipated his son and grandson, the grandson will not be entitled to his estate during the lifetime of the son, but after the death of his father he will be entitled to prætorian possession of the estate of his grandfather. 2If the grandson alone should be emancipated, and the grandfather, and then his father, should die, the grandson, who has been emancipated, will be entitled to the estate of his father, under the Prætorian Edict, because he would be the heir of his father if he had not been freed from the control of his grandfather. 3Where a son has been emancipated, and the grandson retained under the control of the grandfather, and both of them have been passed over, both will be entitled to possession of the estate under the Prætorian Law. 4If the son who has been emancipated belonged to an adoptive family, and has a son, the grandson will not be entitled to the possession of the estate of the natural grandfather under the Prætorian Edict. And even if the emancipated son, after having had sons born to him, should give himself in adoption, the same rule will apply. It is clear that if a child born in the family of the adoptive grandfather should be emancipated, he will be entitled to prætorian possession of the estate of his natural grandfather. Adoption does not prejudice the rights of a child, so long as he remains in a strange family. Moreover, if he is emancipated, he can obtain possession of the estate of his parents under the Prætorian Edict; provided that he is emancipated during their lifetime, and not after their death; for it is certain that he cannot be emancipated after their decease.
7 Gaius libro quarto decimo ad edictum provinciale. Si retentus fuerit in potestate nepos filio emancipato, admittitur nepos vivo avo ad patris bonorum possessionem.
7 Gaius, On the Provincial Edict, Book XIV. If a son should be emancipated, and his son retained under the control of his grandfather, the grandson, during the lifetime of his grandfather, will be permitted to obtain prætorian possession of the estate of his father.
8 Ulpianus libro quadragesimo ad edictum. Non putavit praetor exheredatione notatos et remotos ad contra tabulas bonorum possessionem admittendos, sicuti nec iure civili testamenta parentium turbant: sane si velint inofficiosi querellam instituere, est in ipsorum arbitrio. 1Aliqua parte tabularum exheredem scribi non sufficit, sed eo gradu, contra quem petitur bonorum possessio. unde si a primo gradu exheredatus sit filius, a secundo praeteritus et primo gradu scripti non petierint bonorum possessionem, poterit contra tabulas accipere bonorum possessionem. 2Non quaevis exheredatio summovet filium a contra tabulas bonorum possessione, sed quae rite facta est. 3Si ab uno ex heredibus sit filius exheredatus, Marcellus libro nono digestorum scribit filium non videri exheredatum: idcirco contra tabulas bonorum possessionem peti posse contra utrumque heredem. 4Si exheredatus sit filius et institutus, optinente eo gradu, in quo institutus est, puto commisso edicto ab alio filio contra tabulas eum bonorum possessionem petere posse. 5A primo gradu praeteritus est filius, a secundo exheredatus. si in primo gradu scripti non sint in rebus humanis mortis tempore testatoris, dicendum est contra tabulas bonorum possessionem praeteritum petere non posse: hereditas enim in secundo gradu versatur, non in primo, ex quo neque adiri hereditas neque bonorum possessio peti potest. sed si post mortem testatoris decesserint heredes scripti, idem Marcellus putat contra tabulas bonorum possessionem semel natam competere. sed et si defecerit condicio institutionis, adhuc tantundem dicit praeteritum ab eo gradu filium contra tabulas bonorum possessionem petiturum. idem scribit et si postumus, qui institutus fuit, non fuerit natus: nam adhuc contra tabulas bonorum possessionem competere filio Marcellus ait. 6Si quis sua manu se exheredem scripsit, an contra tabulas bonorum possessionem possit accipere, videamus. et Marcellus libro nono digestorum nocere ei hanc exheredationem ait, quia senatus hoc pro non scripto non facit, quod contra eum est. 7Si quis emancipatum filium exheredaverit eumque postea adrogaverit, Papinianus libro duodecimo quaestionum ait iura naturalia in eo praevalere: idcirco exheredationem nocere. 8Sed in extraneo Marcelli sententiam probat, ut exheredatio ei adrogato postea non noceat. 9Postliminio autem reverso filio dicendum est exheredationem ante factam nocere. 10Si filium in adoptiva familia constitutum pater naturalis exheredaverit, deinde sit filius emancipatus, nocebit ei exheredatio. 11In adoptionem datos filios non summoveri praetor voluit, modo heredes instituti sint, et hoc iustissime eum fecisse Labeo ait: nec enim in totum extranei sunt. ergo si fuerunt heredes scripti, accipient contra tabulas bonorum possessionem, sed ipsi soli non committent edictum, nisi fuerit alius praeteritus ex liberis qui solent committere edictum. sed si ipse scriptus non sit, sed alius, qui ei adquirere hereditatem potest, non est in ea causa, ut eum ad bonorum possessionem contra tabulas admittamus. 12Ut autem admittantur ad bonorum possessionem, ex liberis esse eos oportet. ceterum si adoptivum filium dedi in adoptionem et heredem scripsi, commisso per alios edicto bonorum possessio contra tabulas ei non dabitur. 13Datur autem ei, qui in adoptiva familia est, contra tabulas possessio, si eo gradu heres scriptus sit, contra quem peti potest bonorum possessio. 14Non est novum, ut emancipatus praeteritus plus iuris scriptis heredibus fratribus suis tribuat, quam habituri essent, si soli fuissent: quippe si filius qui in potestate patris est ex duodecima parte heres scribatur emancipato praeterito, dimidiam partem beneficio emancipati occupat, qui, si emancipatum fratrem non haberet, duodecimam partem habiturus esset. sed si ex parte minima sit heres institutus, non pro ea parte, qua institutus est, tuendus est commisso edicto, sed amplius per bonorum possessionem habere potest. praetori enim propositum est, cum contra tabulas bonorum possessionem dat, eas partes unicuique liberorum tribuere, quas intestato patre mortuo in hereditate habiturus esset, si in potestate mansisset: et ideo sive emancipatus sive is qui in potestatem mansit sive in adoptionem datus ex minima parte heres scriptus sit, non redigitur ad eam portionem, ex qua institutus est, sed virilem accipit.
8 Ulpianus, On the Edict, Book XL. The Prætor does not think that children who have been disgraced by disinheritance, and excluded from the succession, should be permitted to obtain prætorian possession, in opposition to the terms of the will, just as by the Civil Law, they do not prevent the execution of the will of their parents; for, under these circumstances, they have the right to attack the will as inofficious, if they desire to do so. 1It is not sufficient for an heir to be disinherited by this being stated in any part of the will, but he must be specifically mentioned as belonging to that degree against which the possession of an estate is claimed under the Prætorian Law. Hence, if the son should be disinherited in the first degree, and passed over in the second, and the heirs appointed in the first degree do not demand prætorian possession of the estate, the said son can obtain possession of the same in opposition to the terms of the will. 2Every disinheritance does not bar a child from obtaining possession of an estate contrary to the provisions of the will, but only where this is legally done. 3When the son who is disinherited is one of several heirs, Marcellus, in the Ninth Book of the Digest, says that he is not considered to be disinherited, and therefore he can claim possession under the Prætorian Law, in opposition to the terms of the will, against any of the other heirs. 4If a son is disinherited, and then appointed heir, and the degree in which he is appointed takes effect, I think the Edict will become operative with reference to the other son, and that he can demand prætorian possession of the estate in opposition to the terms of the will. 5Where a son is passed over in the first degree, and disinherited in the second, and the heirs appointed in the first degree die before the death of the testator, it must be said that the son who has been passed over will not be entitled to prætorian possession of the estate in opposition to the terms of the will; for the condition of the estate with reference to the second degree is such that it cannot be entered upon in the first degree, nor can prætorian possession of it be claimed. If, however, the appointed heir should die after the death of the testator, Marcellus holds that the right of prætorian possession of the estate, contrary to the provisions of the will, having once vested in the son, he will continue to be entitled to it. And even if the condition upon which the appointment of the heir depended should fail to be fulfilled, he also says that the son who was passed over in that degree can also claim prætorian possession contrary to the provisions of the will. He also says that the same rule will apply even if a posthumous child, who was appointed the heir, should not be born; for he holds that, in this instance, the son will be entitled to prætorian possession of the estate in opposition to the terms of the will. 6Where anyone writes his disinheritance with his own hand, let us consider whether he can obtain prætorian possession of the estate contrary to the provisions of the will. Marcellus, in the Ninth Book of the Digest, says that a disinheritance of this kind will prejudice his rights, because the Senate has not prescribed that, where anyone performs some act against himself, it shall be considered as not having been written. 7Where anyone, after having disinherited his emancipated son, arrogates him, Papinianus, in the Twelfth Book of Questions, says that natural rights will always prevail in a case of this kind, and therefore that such a disinheritance will prejudice the son. 8With reference to a stranger, however, he adopts the opinion of Marcellus that disinheritance will not prejudice his rights, if he should subsequently be arrogated by his father. 9Where a son has returned from captivity under the right of postliminium, it must be said that disinheritance previously made will injure him. 10If a natural father should disinherit his son while he belongs to an adoptive father, and afterwards his son is emancipated, the disinheritance will prejudice his rights. 11The Prætor does not wish that children who have been given in adoption should be excluded from the possession of an estate, provided they are the appointed heirs; and Labeo says that his decision is most just, for the children are not entirely strangers. Therefore, if they should be appointed heirs, they can obtain prætorian possession of the estate in opposition to the terms of the will; but they themselves, alone, cannot render the Edict operative, unless one of those who have been passed over can cause it to be applicable. If, however, this child should not be appointed heir, but another person, who can acquire the estate for him, is, there will be no reason why we should permit him to obtain possession contrary to the provisions of the will. 12Moreover, in order that these children should be permitted to obtain prætorian possession, they must be the direct descendants of the testator, for if I have given in adoption a son, whom I myself have adopted, and the Edict is rendered operative by my other children, prætorian possession of the estate contrary to the provisions of the will shall not be granted to the aforesaid child. 13Prætorian possession in opposition to the terms of the will is also granted to a child belonging to an adoptive family, if he is appointed heir in the degree against which possession of the estate can be demanded. 14It is not surprising that an emancipated son, who has been passed over, should be able to confer upon the appointed heirs greater rights than they would have been entitled to, if they had remained the sole heirs; for if a son, who was under the control of his father, is appointed heir to a fourth part of his estate, and another son, who has been emancipated, is passed over, he will receive half of the estate through the emancipated son, and if he did not have an emancipated brother, he would only be entitled to a twelfth part of the property. Where an heir is only appointed for a very small share of an estate, and the Edict is applicable, he will be not only entitled to the enjoyment of the share to which he was appointed heir, but he can obtain much more through prætorian possession. For the Prætor, when he grants possession of an estate in opposition to the terms of the will, decides to give those shares to each of the children which they would have been entitled to, if their father had died intestate, and the child had remained under his control. Therefore, whether the child who was emancipated, or remained under his control, or was given in adoption, was appointed heir to a small share of the estate, he will not be restricted to that portion of the same to which he was appointed heir, but will be entitled to a full share.
9 Gaius libro quarto decimo ad edictum provinciale. Utrum autem pater adoptivus vivit an defunctus est, nihil interest: nam hoc solum quaeritur, an in adoptiva familia sit.
9 Gaius, On the Provincial Edict, Book XIV. It makes no difference whether the adoptive father is living or dead, for the only inquiry made is whether the child belongs to the adoptive family.
10 Ulpianus libro quadragesimo ad edictum. Si post mortem testatoris heres institutus filius in adoptionem se dederit, bonorum possessionem contra tabulas accipere potest, quia scriptis heredibus instituti non solet nocere adoptio. 1Si filius in adoptionem datus avo materno heres institutus sit a patre naturali, commisso per alium edicto magis est, ut bonorum possessionem accipere possit: nec enim exigimus, ut adeat hereditatem, sed sufficit, ut ei delata sit adquirique possit. 2Si in adoptionem datus, posteaquam iussu patris adoptivi hereditatem adiit, emancipatus fuerit, potest contra tabulas bonorum possessionem accipere hereditatemque ipse potius habebit, quam pater adoptivus. 3Illud notandum est, quod et si adierit hereditatem in adoptionem datus, contra tabulas ei datur: alias autem si quis legatum si quis portionem sibi datam adgnoverit, a contra tabulas bonorum possessione repellendus est. 4Liberi, qui contra tabulas habere non possunt, nec partem faciunt, si per alios committatur edictum: quo enim bonum est eis favere ut partem faciant, nihil habituris? 5Exheredati liberi quemadmodum edictum non committunt, ita nec commisso per alios edicto cum illis venient ad bonorum possessionem unaque eis querella superest, si de inofficioso dicant. 6Hi, qui propter alios contra tabulas bonorum possessionem petunt, non exspectant ut praeteriti possessionem accipiant, verum ipsi quoque bonorum possessionem petere contra tabulas possunt: cum enim semel beneficio aliorum ad id beneficium fuerint admissi, iam non curant, petant illi nec ne bonorum possessionem.
10 Ulpianus, On the Edict, Book XL. If, after the death of the testator, the appointed heir should give himself in adoption, he can obtain prætorian possession of the estate contrary to the provisions of the will, because the adoption of the appointed heir does not prejudice other heirs mentioned in the will. 1If a son should be given in adoption to his maternal grandfather by his natural father, and the Edict takes effect with reference to another child, the better opinion is that the latter can obtain possession of the estate; for we do not require him to enter upon it, but it is sufficient for it to be transferred to him, and that it can be legally acquired. 2Where a son is given in adoption, and, after having accepted the estate by the order of his adoptive father, he is emancipated, he can obtain prætorian possession of the estate in opposition to the terms of the will; for he himself will be more entitled to it than the adoptive father. 3It should be noted that if a son given in adoption should enter upon the estate, possession will be granted to him contrary to the provisions of the will; but, on the other hand, if anyone should receive a legacy or a share of the estate, he will be excluded from prætorian possession contrary to the terms of the will. 4Children who are not entitled to possession contrary to the provisions of the will cannot even obtain a share of the estate, if the Edict is applicable; for what good would it do to favor them and enable them to have a portion of it, since they are not entitled to anything? 5Children who have been disinherited cannot render the Edict operative, hence they cannot be joined with the others when the latter obtain possession of an estate under the Prætorian Law; and they have only one ground of complaint, that is, to allege that the will is inofficious. 6Those who demand prætorian possession in opposition to the terms of the will, for the benefit of others, do not wait until those children who have been passed over make application for possession, but they themselves can demand it at any time. For, having been once admitted to obtain it for the benefit of others, they do not concern themselves as to whether the former heirs intend to demand it or not.
11 Paulus libro quadragesimo primo ad edictum. Si in adoptionem datus sub condicione scriptus sit heres a naturali patre, alio committente contra tabulas edictum et ipse veniet: sed si defecerit condicio, repellitur ab ea possessione. idem puto et in eo, qui pure quidem, sed non iure scriptus sit heres. 1Exemplo iuris legitimi et bonorum possessio contra tabulas distribuitur: igitur nepotes ex uno filio unam partem habebunt.
11 Paulus, On the Edict, Book XLI. Where a son given in adoption is appointed heir by his natural father, and another claims the benefit of the Edict contrary to the provisions of the will, the latter will be entitled to the preference. If, however, the condition should fail to be fulfilled, he will be excluded from possession. I think that this also applies to him who has been absolutely appointed an heir, but that was not done in conformity to law. 1Prætorian possession of an estate contrary to the provisions of the will is divided in the same manner as legal succession on the ground of intestacy. Hence grandsons by one son will have a single share between them.
12 Gaius libro quarto decimo ad edictum provinciale. Si duobus filiis et ex altero filio duobus nepotibus bonorum possessio competat et alter ex nepotibus non petat, pars eius fratri adcrescit. si vero ex filiis alter non petat, tam fratri quam nepotibus id prodest: namque tunc duo semisses fiunt, ex quibus alterum filius, alterum nepotes consequuntur. 1Si prius testamentum exstet iure factum, quo filius exheredatus est, sequens [ed. maior inperfectum] <ed. minor imperfectum>, in quo praeteritus sit filius, posteriore testamento praeteritus recte petet bonorum possessionem, si remoto quoque filio potiores sunt in ea hereditate posteriore testamento scripti heredes: et ita ius habet, ut, cum is, contra quem filius petit bonorum possessionem, amoto filio possit optinere hereditatem, filius quoque recte videatur petere bonorum possessionem, si vero ille non possit optinere hereditatem, filius quoque excludatur.
12 Gaius, On the Provincial Edict, Book XIV. Where two sons together with two grandsons by another son are entitled to prætorian possession of an estate, and one of the grandsons does not claim it, his share will accrue to his brother; but if one of the sons does not claim possession, his brother, as well as the grandsons, will profit by it, for then the estate will be divided into two equal parts, of which the son will obtain one, and the grandsons the other. 1Where there are two wills, and one, by which a son is disinherited, is properly drawn up, and the second, in which the son is passed over is imperfect, he who is passed over in the last will can legally claim prætorian possession of the estate, if the heirs mentioned in the second will are such as should have preference over those mentioned in the first, in case the son should be excluded. Hence the rule is established that, when he against whom the son claims prætorian possession of the estate can obtain it if the son should be excluded, the latter also can legally demand prætorian possession, but if he could not obtain the estate, the son will also be excluded.
13 Iulianus libro vicesimo tertio digestorum. Cum emancipatus bonorum possessionem contra tabulas accipit, scriptus heres ei hereditatem petenti cogendus est et praedia et servos hereditarios praestare: omne enim ius transferri aequum est, quod per causam hereditariam scriptus heres nanciscitur, ad eum, quem praetor heredis loco constituit. 1Qui duos filios et ex altero eorum nepotem habebat, eum in adoptionem dedit et heredem instituit praeterito altero filio: quaeritur, quid in his servari debeat, utrum in partem patris sui admittatur an virilem portionem habeat. respondi: in adoptionem datus nepos et heres scriptus, quamdiu pater eius aut in potestate aut emancipatus est, non potest contra tabulas bonorum possessionem accipere: sed et si pater eius, antequam bonorum possessionem acciperet, decesserit, non admittitur nepos ad bonorum possessionem. 2Si pater emancipato filio praeterito heredes duos scripserit, filium quem in potestate habebat et alterum quem in adoptionem dederat, ex quo duos nepotes in familia reliquerat, qui et ipsi testamento praeteriti sint: bonorum possessionem pro parte tertia emancipatus, pro parte tertia is qui in potestate remansit, pro parte tertia qui in adoptionem datus est et filii eius simul habebunt, ita ut sextans patri, sextans nepotibus cedat. 3Si pater ex duobus filiis alterum habentem filios emancipaverit et unum ex nepotibus, quem ante emancipaverat, in locum filii adoptaverit, praeterito deinde emancipato decesserit, aequius erit nepoti, qui in locum filii venerit, succurri et in tres partes hereditatem diduci, ut unam habeat qui in potestate remanserit, alteram nepos adoptatus in locum filii, tertiam emancipatus cum filio suo, qui nepotis loco fuerit. sed etsi mortuo filio alter ex nepotibus in locum filii adoptatus fuerit, tres partes in bonis fient, cum sit aequius eum, qui in locum filii adoptatus est, non minus habere, quam si non ex numero nepotum, sed extraneus adoptatus esset.
13 Julianus, Digest, Book XXIII. Where an emancipated son obtains prætorian possession of an estate in opposition to the terms of the will, the appointed heir will be compelled to surrender to him the lands and slaves belonging to the estate; for it is only just that everything which the appointed heir has obtained from the estate should be transferred to him whom the Prætor has appointed in his place. 1Where anyone has two sons, and gives in adoption a grandson by one of them, and appoints him his heir, after having passed over the other son, the question arises what rule should be followed in this instance, and whether the grandson should obtain merely the share of his father, or a full share of the inheritance. I answered that where a grandson is given in adoption and appointed an heir, as long as his father is under the control of another, or is emancipated, he cannot obtain prætorian possession in opposition to the terms of the will. If, however, his father should die before obtaining prætorian possession of the estate, the grandson will not be permitted to claim it. 2If a father, after having passed over an emancipated son, should appoint his other two sons his heirs, one of them being still under his control, and the other given in adoption, and two grandsons by the latter belonging to the family were also passed over in the will, the emancipated son, the son who remained under his father’s control, and the one given in adoption, together with his two children, can each demand possession of a third of the estate, in such a way that the last one mentioned will be entitled to a sixth, and his children to another sixth of the same. 3Where a father, who had two sons, emancipated one of them who himself had children, and afterwards adopted one of the grandsons whom he had previously emancipated, instead of his son, died after having passed over the emancipated son in his will, it would be but just to grant relief to the grandson who took the place of the son, and for the estate to be divided into three parts, in such a way that the son who remained under the control of his father should have one; the grandson who was adopted instead of the son, another; and the emancipated son, along with his own son who took the place of the grandson, the third. And even if the son should die and another of the grandsons be adopted in his stead, the estate must be divided into three parts, and it would be equitable for the grandson, who was adopted instead of the son, not to have less than he would have had if he had not been included among the grandsons, but a stranger had been adopted.
14 Africanus libro quarto quaestionum. Si duobus filiis emancipatis alter heres institutus sit, alter praeteritus, si institutus adierit, quamvis verbis edicti parum expressum sit, tamen non posse eum petere bonorum possessionem respondit, quia iudicium patris secutus sit: nec enim emancipatum, si legatum acceperit, admitti ad bonorum possessionem, sive ab heredibus institutis sive ab his, qui contra tabulas petierint, acceperit. sed illud observandum, ut praetor eum, qui heres institutus adierit, in eam partem qua scriptus sit tueri debeat, dum tamen non ampliorem, quam habiturus esset, si bonorum possessionem accepisset: ut hactenus deteriorem causam suam fecerit, quod, si ex minore parte sit institutus, eam dumtaxat retinere possit et quod extraneis quoque legata praestare cogatur. quod si is qui in potestate est heres institutus sit, quoniam necessarius heres fit, non aliud dici posse, quam et ipsum petere posse bonorum possessionem, si modo hereditati se non inmiscuerit: tunc enim, quia iudicium patris comprobasse videtur, in eodem loco quo emancipatum haberi debere. 1Filius in adoptiva familia uxore ducta filium sustulit eumque post mortem patris adoptivi emancipavit: hunc nepotem contra tabulas avi naturalis decreto posse petere bonorum possessionem respondit. item si filius emancipatus sublato filio et emancipato adrogandum se dederit et mortuo adoptivo patre decesserit, et contra patris et contra avi tabulas ex decreto hunc admitti minime dubitari debere, ne alioquin ab omnium bonis excluderetur.
14 Africanus, Questions, Book IV. If of two sons who had been emancipated one was appointed an heir, and the other was passed over in the will, and the one appointed should enter upon the estate, it is held that, although a case of this kind is not expressly referred to by the terms of the Edict, still, the son who was appointed heir cannot demand prætorian possession of the estate because he has accepted the will of his father. For the Edict does not permit an emancipated son to obtain prætorian possession if he has received the legacy, whether he received it from the appointed heir, or from those who under the Prætorian Law claim possession contrary to the provisions of the will. It must, however, be observed that the Prætor should protect the appointed heir who accepts the share of the estate left him by the will, provided he does not receive a larger share of the same than he would have been entitled to, if he had obtained prætorian possession; and it is in this respect only that he can prejudice himself. But if he was appointed heir to a small portion of the estate, he can only retain that portion, and he will be compelled to pay any legacies which may be due to foreign heirs. Where the appointed heir is under paternal control, and he becomes a necessary heir, it may be said that he can demand prætorian possession of the estate, provided he has not interfered in its affairs, for if he has, he will be considered to occupy the same position as an emancipated son, because he has approved the will of his father. 1A son, while a member of an adoptive family, married and had a son, and emancipated him after the death of his adoptive father. It was held that his grandson could, by a decree of the Prætor, claim possession of the property of the estate of his natural grandfather, in opposition to the will of the latter. Again, if an emancipated son, after having himself had a son, and emancipated him, should give himself to be arrogated, and die after the death of his adoptive father, there can be no doubt that, under a decree of the Prætor, he would be entitled to prætorian possession contrary to the provisions of the wills of his father and grandfather, in order to prevent him from otherwise being excluded from the estate of both of them.
15 Marcianus libro quinto regularum. Si praeteritus filius emancipatus exceptionem doli mali agenti heredi patris opposuerit de eo quod patri debuit, non posse eum contra tabulas bonorum possessionem petere existimo: nam hoc ipso quasi repudiavit bonorum possessionem. quod ita intellegendum est, si heredem petentem debitum noluerit filius repellere illa exceptione ‘si non contra tabulas bonorum possessio filio dari potest’, sed magis doli exceptione usus est.
15 Marciamis, Rules, Book V. Where an emancipated son is passed over in a will, I do not think that he can claim prætorian possession of the estate in opposition to the terms of the will, if the appointed heir should interpose an exception on the ground of fraud, based on a debt which he owed his father; for, in this instance, he has, as it were, abandoned the right to claim prætorian possession of the estate. This, however, must be understood to be applicable where the son was not willing to bar the heir claiming the debt, by means of the exception, “If possession of the estate contrary to the provisions of the will cannot be granted to the son,” but prefers to avail himself of an exception on the ground of bad faith.
16 Pomponius libro quarto ad Sabinum. Si emancipatus filius nepoti in potestate avi relicto ab extraneo herede fideicommissam hereditatem, si liberatus avi potestate fuisset, reliquisset: si suspectus avus sit quasi consumpturus bona nepotis, non esse ei dandam bonorum possessionem.
16 Pomponius, On Sabinus, Book IV. If an emancipated son should leave his son under the control of the grandfather of the latter, and charge a foreign heir under a trust to transfer his estate to him, if he should be released from the control of his grandfather, possession of the estate ought not to be given to the grandfather by the Prætorian Law, if there was reason to think that he would waste the property of the grandson.
17 Ulpianus libro trigesimo quinto ad Sabinum. Si pater se dederit in adoptionem nec sequatur eum filius emancipatus ab eo antea factus, quia in alia familia sit pater, in alia filius, bonorum possessionem contra tabulas non potest filius eius habere: et ita Iulianus scripsit. Marcellus autem ait iniquum sibi videri excludi eos a bonorum possessione, cum pater se dedit in adoptionem: ubi enim filius non datur in adoptionem, at pater se dat, nullum patrem filio adsignat: quae sententia non est sine ratione.
17 Ulpianus, On Sabinus, Book XXXV. If a father should give himself in adoption, and his son should not follow him on account of his having been previously emancipated, the son will not be permitted to demand prætorian possession of his father’s estate, because the latter belonged to one family and the son is a member of another. This opinion was also adopted by Julianus. Marcellus, however, says that it seems to him to be unjust that the son should be excluded from prætorian possession of the estate, for the reason that his father gave himself in adoption, for when a son does not give himself in adoption and his father does, this leaves the son without any father; which opinion is not unreasonable.
18 Hermogenianus libro tertio iuris epitomarum. Sub condicione exheredatus contra tabulas bonorum possessionem petet, licet sub condicione heres institutus a contra tabulas bonorum possessione excludatur: certo enim iudicio liberi a parentium successione removendi sunt. 1Ei, qui contra tabulas bonorum possessionem accepit, tam legati quam fideicommissi exactio, sed et mortis causa donationis retentio denegatur: nec interest, per semet ipsos an per alium quaeratur.
18 Hermogenianus, Epitomes of Law, Book III. Where, however, a son is disinherited under a condition, and demands prætorian possession of the estate contrary to the provisions of the will, even though he may have been appointed heir under a condition, he shall be excluded from possession of the estate; for children are deprived of the estates of their parents in consequence of a positive resolution. 1The retention of a legacy and of a donation mortis causa, as well as the execution of a trust is refused to one who has obtained prætorian possession of an estate in opposition to the terms of the will; and it makes no difference whether the bequest was acquired directly, or by the intervention of another.
19 Tryphoninus libro quinto decimo disputationum. Quod volgo dicitur liberis datam bonorum possessionem contra lignum esse sic intellegendum est, ut sufficiat exstitisse tabulas mortis tempore patris, ex quibus vel adiri hereditas vel secundum eas bonorum possessio peti potuit, quamvis neutrum eorum postea secutum sit vel sequi potuit: nam si vel omnes instituti substitutique ante testatorem decesserint vel is scriptus heres fuit, cum quo testamenti factio non fuit, peti contra tabulas inane est, quae sine effectu forent.
19 Tryphoninus, Disputations, Book XV. When it is said that prætorian possession of an estate contrary to the provisions of the will is granted to children, this should be understood to mean that it is sufficient that there was a will at the time of the death of their father, under which they could either accept the estate, or demand possession of it under the Prætorian Edict; although neither of these things was done, or could have been done afterwards. For if all the appointed heirs and their substitutes should die before the testator, and an heir should be appointed who was not capable of taking under the will, it would be useless to claim possession contrary to the provisions of the will, which would be absolutely without effect.
20 Idem libro nono decimo disputationum. Filium quem in potestate habebat exheredavit, emancipatum praeteriit: quaesitum est, quatenus emancipatus bonorum possessionem habiturus sit. dixi, si scripti heredes extranei adierint hereditatem, repellendum esse filium, qui mansit in potestate. quod si hi repudiaverint hereditatem (quod facile sunt facturi nihil laturi ex hereditate propter eum, qui contra tabulas accepit bonorum possessionem), filius ab intestato patris suus heres deprehendetur: emancipatus autem petens contra tabulas bonorum possessionem solus habebit bonorum possessionem. sed cum exheredatio non adita hereditate ex testamento nullius sit momenti (ideoque non obstare eam nec quo minus contra tabulas libertorum patris accipiat bonorum possessionem, Iulianus recte respondit, ne testamentum per omnia irritum ad notam exheredationis solam profecisse videatur), redit res ad intestati exitum, ut adversus filium suum ex asse heredem ab intestato patri emancipatum praetor in parte dimidia tueatur. erit ergo venale beneficium scripti heredis extranei, ut, cum ipse iure hereditatis nihil sit consecuturus, adeundo repellat filium in potestate relictum praestetque assem emancipato filio iure contra tabulas bonorum possessionis: si autem omiserit hereditatem, in portionem bonorum exheredatum effectu admittet, iure factum solum suum heredem. sed quemadmodum praetor emancipatum tueatur, si adita non fuerit hereditas, ita nec filius qui in potestate remansit aditione adhibita in totum expellendus erit, sed ad hereditatis petitionem admittendus est ex causa inofficiosi querellae contra emancipatum movendae. 1Videamus tamen isto casu, quo utrique ad bona patris veniunt, an ei conferre debeat emancipatus: nam neque ex hac parte edicti verbis id facere cogitur, unde contra tabulas accepit bonorum possessionem, quae inter eos, quibus ita bonorum possessio dabitur, caveri de collatione ab emancipato iubet: iste enim qui mansit in potestate quod exheredatus nominatim fuit, non est vocatus ad bonorum possessionem contra tabulas: neque ex illa parte edicti, qua intestato patre mortuo emancipatus ad bonorum possessionem admissus ad collationem compellitur, quia etsi frater ab intestato heres sit, emancipatus tamen non inde accepit bonorum possessionem. et vereor, ne hactenus filio suo profuerit factum heredis scripti non adeuntis, ut eum ad portionem admitteret bonorum paternorum, non etiam eorum, quae emancipatus propria habuit, et hoc sit consequens illi, quod, cum ex minore parte scriptus a patre heres relictus in potestate, admisso fratre emancipato ad contra tabulas bonorum possessionem, eius beneficio plus consequatur, quamvis edicti verbis collatio inducatur, ex mente praetoris denegandam eam respondetur. multo magis autem huic conferri non oportet, quia ei a patre exheredatus, a praetore ad bonorum possessionem contra tabulas non vocatus occasione omissae hereditatis a scripto herede (nihil habituro propter delatam emancipato a praetore contra tabulas bonorum possessionem) nomen sui heredis adeptus est. 2Legata tamen ex parte sua iste emancipatus liberis et parentibus praestare cogetur non solida, sed deminuta in dimidium, quod relinquitur manenti in potestate. sed nec adversus eum constituendae actionis legatorum ratio est, qui mero iure intestato heres exstitit. 3Sed qui accepit contra tabulas bonorum possessionem, etiamsi non fuerit adita hereditas a scripto, praestat legata ea parte testamenti data, contra quam bonorum possessio accepta est. erit ergo melior hoc casu condicio in familia relicti filii, quam foret, si exheredatus non esset.
20 The Same, Disputations, Book XIX. A testator disinherited his son, who was under his control, and passed over another whom he had emancipated. The question arose under what circumstances the emancipated son would be entitled to prætorian possession of the estate. I answered that if the foreign heirs who were appointed should accept the estate, the son who remained under the control of his father would be excluded. If, however, the said heirs should reject it, which they could easily do, as they could obtain nothing from it on account of him who was entitled to prætorian possession contrary to the provisions of the will, and because the son who had remained under the control of his father, having become his own master, would be the heir-at-law of his father; still, the emancipated son, having demanded prætorian possession in opposition to the terms of the will, would alone be entitled to it. But, as disinheritance is of no force or effect, where an estate is not accepted under the will, Julianus very properly holds that this should not prevent the disinherited son from acquiring prætorian possession of the estate of his father contrary to the provisions of the will. In order to prevent a will, void in every other respect, from seeming to be effective solely so far as the reproach of disinheritance is concerned, the matter is referred to the death of the intestate, so that the Prætor may protect the emancipated son against the direct and sole heir-at-law, and secure for him half of the inheritance. Therefore the benefit to be obtained from the appointed foreign heir is purchaseable, and as he can legally obtain nothing of the estate, by entering upon the same he can exclude the son remaining under parental control, and by law will transfer it in its entirety to the emancipated son, in opposition to the terms of the will. If, however, the appointed heir should reject the estate, he will render the disinherited heir, who now becomes the sole heir, entitled to his share of the same. For, just as the Prætor protects the emancipated heir when an estate is not entered upon, so the son who remained under his father’s control should not be absolutely excluded in case the estate should be accepted; but he will be permitted to claim it, as against the emancipated son, on the ground that the will is inofficious. 1Let us see, however, where both heirs obtain the estate of their father, whether the one who has been emancipated is subject to contribution to the other, as he is not obliged to do this by the terms of the Section of the Edict under which he obtains prætorian possession in opposition to the terms of the will, since it directs security for contribution to be furnished by the emancipated heir, to those to whom possession of the estate is given. For the heir who is under the control of his father is not called to the prætorian possession of the estate contrary to the provisions of the will, because he was expressly disinherited. Nor is contribution required by that Section of the Edict under which the emancipated son is permitted to obtain prætorian possession after his father has died intestate, for the reason that although his brother may be the heir-at-law; still, the emancipated son does not obtain prætorian possession of the estate on account of the above mentioned Section. I fear that the act of the appointed heir, who rejects the estate, will not be of any benefit to the son, except to enable him to obtain half of the estate of his father; but by it he will not acquire half of the property of the son who was emancipated. In a case of this kind the result will be that, if the heir who is under the control of his father is appointed to a smaller share than he would otherwise have been entitled to, and if his emancipated brother has obtained prætorian possession of the estate, although contribution is indicated by the words of the Edict, still by the decision of the Prætor this advantage will be denied him. There is, however, much more reason that he should not be benefited by contribution, because, having been disinherited by his father, he is not called to the prætorian possession of the estate in opposition to the terms of the will; and on account of the rejection of the estate by the appointed heir, he will not be entitled to anything, because the emancipated son, having obtained possession contrary to the provisions of the will from the Prætor, occupies the position of the proper heir. 2The said emancipated son will be compelled to pay out of his share any legacies bequeathed to children, and ascendants of the deceased, not all of them, but only half; because of what remains of the inheritance for the son under paternal control. There is, however, no cause for the legatees to bring suit against him, since he is rightfully the heir at law. 3But where he received prætorian possession of the estate in opposition to the terms of the will, even if the estate should not be accepted by the appointed heir, he must pay the legacies granted by that part of the will in opposition to which he obtained possession of the estate. Therefore, in this instance, the condition of the son who remains under paternal control will, in fact, be better than if he had not been disinherited.
21 Modestinus libro sexto pandectarum. Si is, qui filium et ex eo nepotem in potestatem habebat, filium in adoptionem dedit nepote retento in potestate, postea filius emancipatus a patre adoptivo decessit extraneis heredibus institutis: filius huius, qui in potestate avi remansit, contra tabulas patris sui bonorum possessionem petere poterit, quamvis numquam in potestate huius fuerit. ideo nec debuisse in potestate esse videtur. nam, si aliter observatur, nec si emancipatus filius fuerit, nepos ex eo, qui in potestate avi remansit, bonorum possessionem contra tabulas petere poterit. 1Idemque iuris est, si emancipato filio nepos ex eo in potestate avi remanserit et postea patri suo in adoptionem datus fuerit: id est contra tabulas avi bonorum possessionem petere poterit, quia per adoptionem in aliena familia non fuerit. 2Sed si emancipatus filius meus adoptaverit extraneum filium, is qui adoptatus est filius contra tabulas meas bonorum possessionem petere non poterit, quia numquam nepotis loco apud me fuit.
21 Modestinus, Pandects, Book VI. Where a man has a son, and by him a grandson under his control, and gives his son in adoption, but retains his grandson under his authority, and his son, having subsequently been emancipated by his adoptive father, dies, after appointing foreign heirs, the son of the one who remained under the control of his grandfather can demand prætorian possession of the estate of his father, although he may never have been under his control. Hence it is held that it is not indispensable for him to have been under his control; for if it is decided otherwise, and the son should not be emancipated, the grandson of him who remained under the control of his grandfather can demand prætorian possession of the estate contrary to the provisions of the will. 1The same rule of law applies where a son, having been emancipated, a grandson by him remains under the control of his grandfather, and is afterwards given in adoption to his father; that is to say, he can demand prætorian possession of the estate of his grandfather in opposition to the terms of his will, because by this adoption he does not become a member of another family. 2If, however, my emancipated son should adopt a stranger as his son, the said adoptive son cannot demand prætorian possession of my estate contrary to the provisions of my will, for the reason that he never sustained the relation of grandson to me.