De collatione bonorum
(Concerning the collation of property.)
1 Ulpianus libro quadragesimo ad edictum. Hic titulus manifestam habet aequitatem: cum enim praetor ad bonorum possessionem contra tabulas emancipatos admittat participesque faciat cum his, qui sunt in potestate, bonorum paternorum: consequens esse credit, ut sua quoque bona in medium conferant, qui appetant paterna. 1Inter eos dabitur collatio, quibus possessio data est. 2Plane si minorem vel alium, quem restituere in integrum solet praetor, restituerit ad bonorum possessionem contra tabulas petendam quam omiserat, utique etiam collationis commodum ei restituit. 3Si ex dodrante fuit institutus filius qui erat in potestate, extraneus ex quadrante, emancipatum accipientem contra tabulas pro quadrante tantum bona sua collaturum Iulianus ait, quia solum quadrantem fratri abstulit: argumentum pro hac sententia adfert Pomponius, quod filius emancipatus nepotibus ex se natis solis conferre cogitur. 4Pater filium quem in potestate habebat et extraneum heredem scripsit, emancipatum praeteriit: bonorum possessionem contra tabulas uterque filius accepit. potest non incommode dici emancipatum ita demum conferre fratri suo debere, si aliquid ei ex causa hereditaria abstulerit: nam si minore ex parte quam dimidia is qui in potestate erat heres scriptus fuerit, inique videbitur collationem postulare ab eo, propter quem amplius hereditate paterna habiturus est. 5Totiens igitur collationi locus est, quotiens aliquo incommodo adfectus est is qui in potestate est interventu emancipati: ceterum si non est, collatio cessabit. 6Vel maxime autem tunc emancipatum conferre non oportet, si etiam iudicium patris meruit nec quicquam amplius nanciscitur, quam ei pater dedit. 7Sed et si legatis meruit semissem vel tantum, quantum contra tabulas bonorum possessione occupat, dicendum est non esse cogendum ad collationem. 8Ibidem Iulianus ait, si bonorum possessione accepta decesserit is qui in potestate est, ad collationem bonorum cogendum emancipatum, ut tantum heredi eius conferat, quantum conferret ipsi, si viveret. quod si ante acceptam bonorum possessionem decesserit suus, heredem eius praetor ita tueri debebit, inquit, pro ea parte, qua heres scriptus fuit is qui in potestate erat, non tamen ultra virilem: ad collationem autem non admittit eum in hunc casum, quia bonorum possessio admissa non est. 9Iubet autem praetor ita fieri collationem, ut recte caveatur: caveri autem per satisdationem oportere Pomponius ait. an pignoribus caveri possit, videamus: et Pomponius libro septuagesimo nono ad edictum scripsit et reis et pignoribus recte caveri de collatione, et ita ego quoque puto. 10Si frater cavere non possit, curator portionis eius constituitur, apud quem refecta pecunia collocetur, ut tunc demum recipiat quod redactum est, cum bona propria contulerit. quod si per contumaciam actiones denegatae sint, oblata postea cautione recipit pristinum ius. 11Quamvis autem edictum praetoris de cautione loquatur, tamen etiam re posse fieri collationem Pomponius libro septuagensimo nono ad edictum scripsit. aut enim re, inquit, aut cautione facienda collatio est. igitur dividat, inquit, bona sua cum fratribus et quamvis non caveat, satisfacit edicto. sed et si quaedam dividat, de quibusdam caveat, aeque dicimus eum satisfecisse. sed cum possint esse quaedam in occulto, non satis confert qui non cavit, quamvis dividat. si igitur constet inter partes, quid sit in bonis emancipati, sufficiens collatio est divisio: si non constet, sed dicantur quaedam non esse in commune redacta, tunc propter incertum cautio erit interponenda. 12Sed et si tantum forte in bonis paternis emancipatus remittat, quantum ex collatione suus habere debet, dicendum est emancipatum satis contulisse videri: idem et si nomen paterni debitoris delegaverit vel fundum remve aliam dederit pro portione bonorum, quae conferre debuit. 13Si, cum duobus conferre deberet, alteri contulerit, alteri non, vel cum cavet vel cum dividit: videndum est, utrum sextantis tantum ei auferatur emolumentum an vero trientis totius detrahi debeat. et puto, si quidem per contumaciam non caveat, totius trientis ei denegandas actiones (nec enim videtur cavisse, qui non omnibus cavit): quod si per inopiam, sextantis tantum denegandas, sic tamen, ut possit supplere cautionem vel collatione vel ceteris modis quibus supra diximus, aut curator constituatur rem ei salvam facturus: haberi enim debet ratio eius, qui non per contumaciam collationem non implet. 14Is quoque, qui in adoptiva familia est, conferre cogitur, hoc est non ipse, sed is qui eum habet, si maluerit contra tabulas bonorum possessionem accipere. plane si hic adoptivus pater ante bonorum possessionem petitam emancipaverit eum, non cogetur ad collationem, et ita rescripto divorum fratrum expressum est: sed ita demum adoptivus emancipatus collatione fratres privabit, si sine fraude hoc factum sit. 15Nec castrense nec quasi castrense peculium fratribus confertur: hoc enim praecipuum esse oportere multis constitutionibus continetur. 16Sed an id, quod dignitatis nomine a patre datum est vel debetur, conferre quis in commune cogatur, videamus. et ait Papinianus libro tertio decimo quaestionum non esse cogendum: hoc enim propter onera dignitatis praecipuum haberi oportere. sed si adhuc debeatur, hoc sic interpretandum est, ut non solus oneretur is qui dignitatem meruit, sed commune sit omnium heredum onus hoc debitum. 17Qui ab hostibus captus post mortem patris redit, licet moriente patre nihil habuit, cum apud hostes fuerit, tamen et ad bonorum possessionem admittetur et conferet scilicet ea, quae moriente patre haberet, si ab hostibus captus non fuisset. sed et si redemptus ab hostibus mortis tempore patris inveniatur, aeque collatio erit facienda. 18Si emancipato legatum fuerit, cum pater morietur, etiam hoc conferre debet. 19Si ab ipso patre herede instituto filio eius fideicommissum fuerit relictum, cum morietur, an id conferendum est, quoniam utile est hoc fideicommissum? et eveniet, ut pro eo habeatur, atque si post mortem patris relictum fuisset, nec cogetur hic conferre, quia moriente eo non fuisset. 20Emancipatus filius si dotem habeat ab uxore acceptam, hoc minus confert, etsi ante uxor decesserit. 21Si impuberi adrogato secundum divi Pii rescriptum quarta debetur, videndum est, an, si patris naturalis bonorum possessionem petat, conferre quartam debeat. quaestio in eo est, an heredi suo relinquat quartae actionem an non. et magis est, ut ad heredem transferat, quia personalis actio est: igitur etiam de quarta conferenda cavere eum oportebit, sed hoc ita demum, si iam nata est quartae petitio. ceterum si adhuc pater adoptivus vivat, qui eum emancipavit, dicendum est cautionem quoque cessare: praematura est enim spes collationis, cum adhuc vivat is, cuius de bonis quarta debetur. 22Si is qui bona collaturus est habeat filium peculium castrense habentem, non cogetur utique peculium eius conferre. sed si iam tunc mortuus erat filius eius et castrense peculium habebit, cum morietur is cuius bonorum possessio petenda est: an conferre cogatur? cum autem vindicari id patri non sit necesse, dici oportebit conferendum: non enim nunc adquiritur, sed non adimitur. amplius dico, et si institutus fuerit a filio heres nec dum adierit habeatque substitutum, quia non magis nunc quaeritur peculium quam nunc non alienatur, conferri debere. 23Confertur autem etiam si quid eius non fuerit, dolo malo autem factum sit, quo minus esset: sed hoc sic accipiendum est, ut hoc demum conferatur, quod eius esse desiit dolo malo: ceterum si id egit, ne adquireret, non venit in collationem: nam hic et sibi insidiatus est. 24Portiones collationum ita erunt faciendae: ut puta duo sunt filii in potestate, unus emancipatus habens trecenta: ducenta fratribus confert, sibi centum: facit enim eis partem, quamvis is sit, cui conferri non solet. quod si duo sint filii emancipati habentes trecena et duo in potestate, aeque dicendum est singulos singulis, qui sunt in potestate, centena conferre, centena retinere, sed ipsos invicem nihil conferre. dotis quoque collatio in eundem modum fiet, ut quicumque confert, etiam suam personam numeret in partibus faciendis.
1 Ulpianus, On the Edict, Book XL. The subject of this Title manifestly is an equitable one; for the Prætor permits emancipated children to obtain possession of the estate in opposition to the terms of the will, and thus makes them share in the paternal estate with those who were under the control of the testator; and he thinks, on account of this, that those who desire to obtain the property of their father should place all their own property in the mass of the estate. 1Collation affects all those to whom prætorian possession has been given. 2It is clear that if the Prætor should grant complete restitution to a minor, or to anyone else entitled to it, he will also reinvest him with the right to obtain possession of the estate contrary to the provisions of the will, which he had failed to take advantage of, and will, in addition, restore to him the advantage of collation. 3If a son, who is under the control of his father, should be appointed heir to three-fourths of his estate, and a stranger heir to the remaining fourth, Julianus says that an emancipated son, who has obtained prætorian possession contrary to the provisions of the will, will only be compelled to collate his own property in proportion to a fourth of the estate, because he deprived his brother of only that amount. In proof of this opinion Pomponius states that an emancipated son is only obliged to collate his property with the grandsons of the testator, who were his own sons. 4A father appointed his son, whom he retained under his control, and a stranger his heirs, and passed over an emancipated son in his will. Both sons obtained prætorian possession of his estate in opposition to the terms of the will. It can, and not improperly, be held that the emancipated son should only collate with his brother in proportion to the amount of the estate of which he deprived him; for if the son who was under the father’s control had been appointed heir to less than half the property, it would seem unjust that collation should be required of him through whom the other son obtained a larger share of his father’s estate. 5Therefore, there is ground for collation as often as the heir who is under paternal authority is caused any inconvenience by the intervention of the emancipated heir. Where, however, this is not the case, there no reason for collation exists. 6Moreover, it is certainly not necessary for the emancipated son to place his property in the mass of the estate, when he obtained it through the will of his father and received no more than the latter left him. 7If he received half of the estate as a legacy, or as much as he could by prætorian possession contrary to the provisions of the will, it must be said that he cannot be subjected to collation. 8Julianus, in the same place, says that if after prætorian possession has been obtained by the emancipated son, the son who was under paternal control should die, the former can be compelled to make collation of his property in such a way as to contribute as much to his nephew as he would have contributed to his brother himself, if he had lived. If, however, the proper heir should die before having obtained prætorian possession of the estate, he says that the Prætor must protect his heir to the extent of the portion to which the son who was under paternal control was appointed heir, provided this does not exceed his share of the estate; but he does not permit him to apply for collation in this instance, because prætorian possession does not take effect. 9Again, the Prætor orders collation to be made in order that sufficient security may be given. Pomponius says that security should be furnished by means of sureties; but let us see whether it can also be furnished by depositing pledges. Pomponius, in the Seventy-ninth Book on the Edict, asserts that security for collation can be legally given either by sureties, or by pledges; and I concur in this opinion. 10If the brother cannot furnish security, a curator of his share must be appointed, with whom the money obtained from the estate should be deposited, so that the emancipated son can receive what was paid in after he has placed his own property in the mass of the estate. If, however, on account of his obstinacy, an action to collect his share of the estate should be refused him, after having given bond, he can recover his former rights. 11Moreover, although a bond is mentioned in the Edict of the Prætor, still Pomponius, in the Seventy-ninth Book of the Edict, states that even collation of the property itself can be made; for he remarks that collation can be made either by delivering the actual property or by executing a bond. Therefore, as he says, the emancipated heir divides his property with his brothers, and, although he does not give security, the terms of the Edict are complied with. We may also hold that they are complied with if he divides a portion of the property with them, and gives security to contribute more. But as some articles may remain concealed, he who does not furnish security will not make collation sufficiently, even though he divides his property. If, however, it is known of what the property of the emancipated son consists, the division of the same will constitute a sufficient collation. If this is not known, but it is said that certain effects have not been brought into the common mass, then bond must be given on account of their uncertainty. 12But even if the emancipated son should only place in the mass of the estate of his father as much of his own property as he will be entitled to, aside from the collation, he is said to have contributed sufficiently. The same rule applies where he surrenders the note of a debtor to the estate, or transfers a tract of land, or any other property, instead of what he should place in the common mass. 13If the emancipated son is obliged to make collation with two of his brothers, and does so with one, but not with the other, whether he gives him security, or divides his own property with him, it should be considered whether he will lose only one-sixth of the estate, or whether he should be deprived of the entire third of the same. I think that if he does not furnish security through obstinacy, an action to recover the entire third should be refused him; for he is not considered to have given security who did not provide for the indemnification of all the parties interested. But if he is not able to furnish it, only an action to recover the sixth should be denied him; in such a way, however, that he can supply the defect of the bond of the collation by the other means which we have mentioned above, or a curator may be appointed for the preservation of his property. Some allowance should, however, be made for one who does not fully contribute for some other reason than through obstinacy. 14A child who belongs to an adoptive family is compelled to make collation; that is to say, not he himself but the person to whose authority he is subject when required to do so, if he prefers to obtain prætorian possession contrary to the provisions of the will. It is evident that if his adoptive father should emancipate him before he claims prætorian possession of the estate, he will not be compelled to make collation, and this was stated in a Rescript of the Divine Brothers; provided, however, that the adopted son who has been emancipated releases his brothers from collation, if this was done without fraud. 15Neither castrense peculium, nor quasi castrense peculium is the subject of collation among brothers; for it is laid down in many Imperial Constitutions that such property must belong exclusively to each individual. 16But let us see whether anyone can be compelled to place, in the common mass of the estate, property which has been given by the father, or which is still due and payable on account of some office. Papinianus, in the Thirteenth Book of Questions, says that he should not be compelled to place such property in the common mass; for it must be considered to be of a private nature, on account of the obligations attaching to the office. If, however, it should still be due, the matter must be settled, so that not he alone who has obtained the office shall be liable for the debt, but that the common burden shall be sustained by all the heirs. 17Where a son, having been captured by the enemy, returns after the death of his father, even though at that time he had no property while he was in the hands of the enemy, he will, nevertheless, be permitted to obtain prætorian possession of the estate, and he must make collation of the property which he would have had at the time of his father’s death, if he had not been taken prisoner. Collation must also be made by him, if it should be ascertained that he had been ransomed from the enemy at the time of his father’s death. 18If a legacy should be bequeathed to an emancipated son, to take effect at the time of his father’s death, he must also make collation of the legacy. 19If a father should be appointed an heir, and a legacy be left to him in trust for his son, to be paid at the time of his death, must this also be the subject of collation, since the trust is valid? The fact is that it should be considered just as if it had been left after the death of the father, and the son will not be compelled to place it in the mass of the estate, because, at the time of his father’s death, it did not belong to him. 20If an emancipated son has received a dowry from his wife, he will not be required to place it in the mass of the estate, even if his wife should have died before the death of the testator. 21Where a minor, under the age of puberty, has been arrogated, he will be entitled to a fourth of the estate, in accordance with a Rescript of the Divine Pius; but let us see if he claims prætorian possession of the estate of his natural father, whether he must make collation of the said fourth. This question is merely whether he shall relinquish his right of action for the fourth to his heir, or not. The better opinion is that it passes to his heir, because the action is a personal one, and therefore he must give security to place the fourth in the mass of the estate. This, however, only takes place where the right to obtain the fourth has been already established; for if the adoptive father, who emancipated the heir, is still living, it must be said that no reason exists why security should be furnished; for the hope of collation is still premature, as he, the fourth of whose estate is due, is still living. 22Where a person who should make collation of his property has a son who is in possession of peculium, castrense, he cannot be compelled to place the peculium in the mass of the estate. If, however, the son who had the castrense peculium, and the possession of whose estate was claimed under the Prætorian Edict, should already be dead at the time, can the father be compelled to subject the peculium to collation? As it is not necessary for the father to claim it, it must be said that it should be placed in the mass of the estate; for it is neither acquired nor taken away. I further hold that if an heir has been appointed by the son, but he does not accept the estate, and should have a substitute, the peculium should be placed in the mass of the estate, for the reason that it is neither acquired nor alienated at that time. 23Moreover, collation must take place where property no longer, belongs to the emancipated son, and he has been guilty of fraud to avoid having possession of the same. This, however, must be understood to mean that it shall only be the subject of collation where he has relinquished possession of it fraudulently, but if he has done something in order to avoid obtaining the property, it will not be subject to collation; for, in this instance, he has plotted against himself. 24Collation must be made of different shares as follows: for instance, where there are two sons under the control of their father, and another who, having been emancipated, has three hundred aurei of his own, he must contribute two hundred to his brothers, after reserving a hundred for himself; for in this way he will share equally with them, even though he may be one who ordinarily does not make collation. Where, however, there are two emancipated sons, who have three hundred aurei, and two of them are under the control of their father, it must also be said that each one must contribute a hundred aurei to each brother who is under paternal control, and retain a hundred; but the emancipated brothers themselves will not be liable to collation with one another. The collation of a dowry is made in the same manner, so that whoever makes it will also include himself among those who share it.
2 Paulus libro quadragensimo primo ad edictum. Cum emancipati filii nomine nepotem postumum post avi mortem editum dicimus bonorum possessionem accipere oportere, necessarium erit dicere bona sua eum conferre, licet non potest dici mortis tempore avi bona habuisse, qui ipse nondum in rerum natura erat. igitur sive hereditatem a patre sive legatum acceperit, hoc conferre debebit. 1Illud autem intellegendum est filium in bonis habere, quod deducto aere alieno superest. sed si sub condicione debeat, non statim id deducere debebit, sed id quoque conferre: contra autem caveri ei oportebit ab eo qui in potestate est, ut existente condicione defendatur pro ea parte quam contulit. 2De illis, quae sine culpa filii emancipati post mortem patris perierunt, quaeritur, ad cuius detrimentum ea pertinere debeant. et plerique putant ea, quae sine dolo et culpa perierint, ad collationis onus non pertinere: et hoc ex illis verbis intellegendum est, quibus praetor viri boni arbitratu iubet conferri bona: vir autem bonus non sit arbitraturus conferendum id, quod nec habet nec dolo nec culpa desiit habere. 3Id quoque, quod sub condicione ex stipulatu debetur emancipato, conferri debet. diversum est in legato condicionali, quia et si in potestate fuisset et post mortem patris condicio extitisset, ipse haberet actionem. 4Emancipatus filius si iniuriarum habet actionem, nihil conferre debet: magis enim vindictae quam pecuniae habet persecutionem: sed si furti habeat actionem, conferre debebit. 5Si tres emancipati, duo in potestate sint, Gaius Cassius libro septimo iuris civilis tertias conferendas putat, ut emancipati, quia invicem non conferunt, unius loco sint: nec indignari eos oportere, si plus conferant et minus accipiant, quia in potestate eorum fuerit bonorum possessionem omittere. Iulianus quoque Cassii sententiam sequitur. 6Si ex emancipato filio nepos emancipatus mortuo patre simul et avo bonorum possessionem utriusque acceperit, cum uterque eorum suum heredem reliquerit: eo modo collatio explicari potest, ut, si verbi gratia centum in bonis habuit, et patruo quinquaginta et fratri quinquaginta conferre debet: hoc enim ratio facit, sive personas sive portiones numeremus. 7Si duo nepotes ex filio mortuo emancipati bonorum possessionem avi petant, utrum dimidias an quartas patruo conferre debeant, quaeritur. et verius est semisses conferre eos oportere, quia et si vivo avo, cum in eius potestate essent, ducenta puta adquisissent, centum filius, centum duo fratres per hereditatem avi haberent. 8Si duo emancipati bonorum possessionem petierint et unus contulerit, alter non contulerit, huius portio tantum ei qui in potestate est prodesse debet, non etiam emancipato, quoniam eius causa qui in potestate est denegantur ei actiones. 9Si per inopiam emancipatus cavere non possit, non statim ab eo transferenda est possessio, sed sustinendum, donec possit invenire fideiussores, ut tamen de his, quae mora deteriora futura sunt, his qui in potestate sunt actio detur ipsique caveant in medium collaturos, si cautum eis fuerit.
2 Ulpianus, On the Edict, Book XLI. When we say that a grandson, born after the death of his grandfather, can obtain prætorian possession of the estate of the latter, in the name of an emancipated son, it will be necessary to hold that his property will be subject to collation; although it cannot be said that he who had not yet been born had the property at the time of his grandfather’s death. Therefore, he must place the property in the mass of the estate, whether he received all of it from his father, or merely a legacy. 1The property of a son is understood to mean what he has left after deducting his debts. If, however, he owes a sum of money under a condition, it should not immediately be deducted, but it still ought to be placed in the mass of the estate. On the other hand, a son who is under the control of his father should give him security that, if the condition is fulfilled, he will protect him with reference to that portion of which he has made collation. 2Where property has been lost after the death of the father without the emancipated son being to blame, the question arises, who shall suffer the loss? Many authorities hold that property which has been lost without fraud or negligence should not be subjected to the burden of collation; and this is understood from the words with which the Prætor orders the property to be subjected to collation, in accordance with the judgment of a reliable citizen; for a reliable citizen would not decide that property is liable to collation which a person no longer has, and which he did not lose either through fraud or negligence. 3Property which, by virtue of an agreement, is due under a condition, should be placed in the mass of the estate by the emancipated son. The rule is different with reference to a conditional legacy; for, even if he should be under the control of his father, and the condition should be complied with after the death of the latter, he himself will be entitled to an action. 4If the emancipated son brings suit against anyone for injury committed, he need not make it the subject of collation; for a proceeding of this kind is brought rather for the gratification of revenge than for the recovery of money. If, however, he has an action growing out of theft, he should make collation of the same. 5Where there are three emancipated sons, and also two who are under the control of their father, Gaius Cassius, in the Seventh Book of the Civil Law, says that the emancipated sons should make collation of a third of their private property; so that, although they do not contribute to one another, they may be regarded as a single individual. They should not consider themselves ill treated if they contribute more, and receive less; because it was in their power not to apply for prætorian possession of the estate. Julianus also assents to the Opinion of Cassius. 6If an emancipated grandson, born to an emancipated son, after the death of both his father and his grandfather, should obtain prætorian possession of the estates of both, each having left a proper heir, the collation to be made can be explained as follows: for example, if he has property worth a hundred aurei, he should contribute fifty to his uncle, and fifty to his brother, for this ratio applies whether we take into consideration the persons themselves, or the shares of the estate to which they are entitled. 7Where there are two emancipated grandsons, the issue of a deceased son, who demand prætorian possession of the estate of their grandfather, the question arises whether they should contribute half, or a quarter, of their property to their uncle, by way of collation. The better opinion is that each should contribute half of his property, for if, during the lifetime of their grandfather, and while they were under his control, they had received, for instance, two hundred aurei, the son would be entitled to a hundred, and the two brothers to two hundred out of the estate of the grandfather. 8Where two emancipated sons demand prætorian possession of an estate, and one of them makes collation, and the other does not, the share of the latter will only benefit a son who is under paternal control, and not the one who has been emancipated, as it is on account of the one who is under paternal control that an action is denied to the other. 9Where an emancipated son cannot furnish security, he must not immediately be deprived of prætorian possession, but he may retain it until he can find sureties, in such a way, however, that an action can be granted to those who are under paternal control for the recovery of any property which is liable to be damaged by delay; and they must give security to place it in the mass of the estate, if they also are secured against loss.
3 Iulianus libro vicensimo tertio digestorum. Praetor non sub condicione collationis bonorum possessionem contra tabulas promittit, sed demonstrat, quid data bonorum possessione fieri oportet. alioquin magna captio erit emancipati, si non aliter bonorum possessionem accipere intellegeretur, nisi cavisset de collatione: nam si interim ipse decessisset, heredi suo nihil relinqueret. item si frater eius decessisset, non admitteretur ad bonorum possessionem. quid ergo est? intellegendum est bonorum possessionem accipere et antequam caveat, sed si non caverit, ita observabitur, ut tota hereditas apud eum, qui in potestate fuerit, remaneat. 1Emancipatus filius controversiam facit impuberi, qui se filium et in potestate patris fuisse dicit: quaero, si bona sua ei emancipatus conferre debeat. Paulus notat: puto conferendum esse exacta cautione, ut victus sicut hereditatem, ita et quae collata sunt praestet. 2Iulianus. Quotiens contra tabulas bonorum possessio datur, emancipati bona sua conferre debent his solis, qui in potestate patris fuerint. hoc quemadmodum expediri oporteat, quaeri solet: nam si bona a patre relicta et emancipatorum in medium conferantur et ita viriles partes sumantur, eveniet, ut et emancipatis quoque collatio ab ipsis facta prosit. videamus ergo, ne commodissimum sit emancipatos quartam partem ex bonis paternis ferre, ex suis tertiam: quod dico, exemplo manifestius fiet. ponamus patrem quadringenta reliquisse et duos in potestate filios, duos emancipatos, ex quibus alterum centum, alterum sexaginta in bonis habere: is qui centum habebit centum triginta tria et trientem feret, is vero qui sexaginta contulerit centum viginti, atque ita eveniet, ut collationis emolumentum ad solos, qui in potestate remanserint, perveniat. 3Emancipati bona sua conferre cum his, qui in potestate fuerunt, iubentur. 4Quare sicut is, qui in potestate est, dotem uxoris praecipit, ita emancipatus quoque, quasi praecipiat, retinere debet. 5Emancipatus praeteritus si, dum deliberat, caverit de bonorum collatione nec bonorum possessionem petierit, agente fratre ex stipulatu ipso iure tutus erit. sed et si pecuniam contulerit, condictione eam repetit: omissa enim bonorum possessione incipit pecunia sine causa esse apud heredem. 6Qui duos filios in potestate habebat et ex uno eorum nepotem, emancipavit filium, ex quo nepotem habebat: deinde emancipatus factus procreavit filium, quem avus in locum filii adoptavit et vel intestatus, vel testamento facto praeterito emancipato filio, decessit: quaesitum est, quid de bonorum possessione, quid de collatione iuris esset. respondi bonorum, de quibus quaeritur, tres partes fieri debent, ex quibus una pertinet ad filium qui in potestate remansit, altera ad nepotem, qui in locum filii adoptatus est, tertia ad emancipatum filium et nepotem, qui in potestate remanserit, ita ut pater soli ei conferat, cum quo bonorum possessionem accipiat.
3 Julianus, Digest, Book XXIII. The Prætor does not promise possession of the property of an estate in opposition to the terms of the will, under the condition that collation shall be made, but he shows what must be done after possession has been given. Otherwise, great advantage would be taken of an emancipated son, if he was not understood to have obtained prætorian possession of the estate, unless he had given security to make collation; for if, in the meantime, he himself should die, he would leave nothing to his heir. Moreover, if his brother should die, he will not be permitted to obtain prætorian possession of the estate. What should be done under such circumstances? It must then be held that he obtained legal possession of the estate, even before he gave security; but if he should not give security, the result will be that the entire estate will go to the son under paternal control. 1An emancipated son entered into a controversy with a minor under the age of puberty, who declared that he was his brother, and was under the control of his father. I ask whether the emancipated son should make collation of his property with him. Paulus remarks on this point: “I think that collation should be made, after a bond has been required that, if the minor loses the case, he will transfer the estate as well as the property of which collation was made.” 2Julianus: Whenever prætorian possession is given contrary to the provisions of the will, the emancipated sons should make collation of their property only with those who remain under the control of their father. The question arises how this can be done. For, if the property left by the father, as well as that belonging to the emancipated sons, is placed in one mass, and full shares of the same are taken, the result will be that the emancipated sons will profit by the collation made by themselves. Therefore, let us see whether it will not be more convenient for the emancipated sons to receive a fourth of their father’s estate, and a third of their own property. What I mean will become more plain by an example. Let us suppose that a father left four hundred aurei, and two sons under his control, and two have been emancipated. Of these one will have a hundred and the other sixty aurei out of his estate; the one who will be entitled to a hundred will obtain in all a hundred and thirty-three and a third; and he who contributed sixty will obtain a hundred and twenty, so that the result will be that those only who remained under the control of their father will obtain the benefit of the collation. 3Emancipated sons are ordered to place their property in collation with those who are under the control of their father. 4Wherefore, as he who is under the control of his father receives the dowry of his wife as a preferred legacy, so, also, can an emancipated son retain that of his wife as a preferred legacy. 5Where an emancipated son, who was passed over in a will, gives security with reference to the collation of his property, while he is deliberating whether he will demand prætorian possession of the estate or not, and he does not do so, and his brother brings suit against him on the stipulation, he will be secure under the will. If, however, he has deposited money by way of collation, he can recover it by an action; for, after he has declined to apply for prætorian possession, there will be no reason for the money to remain in the hands of the heir. 6A man who had two sons under his control, and also a grandson who was the son of one of them, emancipated the one by whom he had the grandson; and, after having been emancipated, the son had another son whom his grandfather adopted in his stead; and then the grandfather died, either intestate, or after making a will in which his emancipated son was passed over. The question arose, what would the rule be with reference to prætorian possession, and what ought to be done with respect to collation? The answer was that, so far as the property was concerned, three parts should be made of it, one of which would belong to the son who remained under paternal control, the second to the grandson who was adopted instead of the son, and the third to the emancipated son and the grandson who remained under paternal control; so that the father would be liable to collation only with the one who had obtained prætorian possession of the estate.
4 Africanus libro quarto quaestionum. Filium emancipatum dotem, quam filiae suae nomine dedit, conferre non debere, quia non, sicut in matris familias bonis esse dos intellegatur, ita et in patris, a quo sit profecta.
4 Africanus, Questions, Book IV. An emancipated son is not obliged to place in collation the dowry which he gave to his daughter, because it is not understood to be included in the property of the father from whom it was derived, as it is in that of the mother.
5 Ulpianus libro septuagensimo nono ad edictum. Si quis filium habeat sui iuris et ex eo nepotem in potestate sua, consequenter erit dicendum, si nepos patris sui emancipati accipiat bonorum possessionem, de conferendis suis quoque bonis cavere eum debere et esse similem ei qui adoptavit: hoc enim divi fratres rescripserunt, ut ad collationem avus compellatur. plane eodem rescripto adiectum est sic: ‘nisi forte avus iste nullum ex his bonis fructum adquirere vult paratusque est de potestate nepotem dimittere, ut ad emancipatum omne emolumentum bonorum possessionis perveniat. nec idcirco ea filia, quae post emancipationem nata patri heres exstitit, iuste queri poterit’, inquit, ‘quod eo facto a collationis commodo excluditur, cum avo quandoque defuncto ad bona eius simul cum fratre possit venire’. haec in patre adoptivo ratio reddi non potest et tamen et ibi idem dicemus, si sine dolo malo emancipaverit. 1Stipulatio autem collationis tunc committitur, cum interpellatus cum aliquo spatio, quo conferre potuit, non facit, maxime cum boni viri arbitratu collationem fieri edicto praetoris insertum est. 2Sive ergo in totum collatio facta non est sive in partem facta, locum habebit haec stipulatio: 3et sive quis non conferat ex hac stipulatione sive dolo fecerit, quo minus conferat, quanti ea res erit, in tantam pecuniam condemnabitur.
5 Ulpianus, On the Edict, Book LXXIX. Where anyone has a son who is his own master, and by him a grandson who is under his control, it must be said that if the grandson receives prætorian possession of the estate of his emancipated father, he must give security to place his property in collation, and he is like one who has adopted the son of another; for the Divine Brothers stated in a Rescript that the grandfather was compelled to place his property in the mass of the estate. It is true that the following is added in the same Rescript: “Unless the grandfather does not desire to obtain any benefit from his property, and is ready to release his grandson from his authority, so that all the benefit of prætorian possession of the estate may be enjoyed by him after his emancipation.” Hence a daughter, who was born after the emancipation of her father, and who became his heir, cannot justly complain of being excluded from the benefit of the collation by what has been done; as after her grandfather dies, she can, along with her brother, succeed to the estate. This reason cannot be advanced in the case of an adoptive father, and, still we adopt the same rule with reference to him, if he emancipated the son without committing any fraud. 1The stipulation referring to collation takes effect when the person called upon does not act within the time when he ought to have placed his property in the mass of the estate; especially as it is inserted in the Edict of the Prætor that collation should be made in accordance with the judgment of a good citizen. 2Therefore, if collation does not take place in accordance with the terms prescribed, or if it is only partially carried out, the stipulation will become operative. 3And, whether the son does make collation or not, according to the terms of the stipulation, or whether he avoids doing it by means of some fraudulent act, judgment shall be rendered against him for a sum equal to the value of the property.
6 Celsus libro decimo digestorum. Dotem, quam dedit avus paternus, an post mortem avi mortua in matrimonio filia patri reddi oporteat, quaeritur. occurrit aequitas rei, ut, quod pater meus propter me filiae meae nomine dedit, perinde sit atque ipse dederim: quippe officium avi circa neptem ex officio patris erga filium pendet et quia pater filiae, ideo avus propter filium nepti dotem dare debet. quid si filius a patre exheredatus est? existimo non absurde etiam in exheredato filio idem posse defendi, nec infavorabilis sententia est, ut hoc saltem habeat ex paternis, quod propter illum datum est.
6 Celsius, Digest, Book X. The question arises whether the dowry given by a paternal grandfather should be returned to the father after the death of the grandfather, the woman having died during marriage. The equity of the case seems to be that what my father has given to my daughter on my account is just the same as if I had given it myself, for the duty of a grandfather towards his granddaughter depends upon the affection which a father entertains toward a son, and because the father should endow his daughter, so a grandfather should endow his granddaughter for the sake of his son. But what if the son was disinherited by his father? I hold that it would not be absurd for the same rule to be maintained in the case of a disinherited son. I think that it is not an improper opinion that the son should be entitled to what was bestowed out of his father’s estate on his account.
7 Idem libro tertio decimo digestorum. Si nepotes in locum filii successerunt, una portio is conferri debet, uti bonorum possessionis unam partem habent: sed et ipsi ita conferre debent, quasi omnes unus essent.
7 The Same, Digest, Book XIII. Where grandsons succeed to the place of sons, only one share should be contributed to them by way of collation, so that they may have one share of the estate under prætorian possession. They themselves, however, must place their property in the mass of the estate, just as if all of them only constituted one person.
8 Papinianus libro tertio quaestionum. Nonnumquam praetor variantem non repellit et consilium mutantis non aspernatur. unde quidam filium emancipatum, qui de bonis conferendis cavere fratribus noluit, audiendum postea putaverunt, si vellet oblata cautione beneficium bonorum possessionis exercere. tametsi responderi potest videri eum possessionem repudiasse, qui formam possessionis conservare noluit: sed benignior est diversa sententia, maxime cum de bonis parentis inter fratres disputetur. quem tamen facilius admittendum existimo, si intra tempus delatae possessionis cautionem offerat: nam post annum, quam delata esset bonorum possessio, voluntariam moram cautionis admittere difficilius est.
8 Papinianus, Questions, Book III. The Prætor sometimes does not exclude one who is irresolute, or reject him after he has changed his mind. Therefore, certain authorities have held that an emancipated son who refused to give security with reference to placing his property in the mass of the estate ought afterwards to be heard, if, after having furnished security, he should desire to take advantage of the benefit of the prætorian possession of the estate; although it might be said that he seemed to have rejected possession who was unwilling to observe the formalities by which it could be acquired. The former opinion, however, is the more equitable one, especially where a dispute arises among brothers with reference to their father’s estate; and I think that the emancipated son should be permitted to obtain possession, if, in the time prescribed for doing so, he offers to give security; for it will be more difficult to excuse voluntary delay in giving security after the lapse of a year, within which time prætorian possession of an estate can be granted.
9 Idem libro quinto responsorum. Filius emancipatus intestati patris bonorum possessionem accepit. nepos ex eodem in familia retentus semissem hereditatis cum emolumento collationis habebit. idem nepos si postea possessionem intestati patris accipiat, fratri post emancipationem patris quaesito et in familia retento bona sua conferre cogetur.
9 The Same, Opinions, Book V. An emancipated son obtained prætorian possession of the estate of his intestate father. The grandson by the said son, who remained in the family, will be entitled to half of the estate, together with the benefit of collation. If the same grandson should afterwards obtain prætorian possession of the estate of his intestate father, he will be obliged to place his property in the mass of the estate by way of collation with his brother, who was born after the emancipation of his father.
10 Scaevola libro quinto quaestionum. Si filius in potestate heres institutus adeat et emancipato petente bonorum possessionem contra tabulas ipse non petat, nec conferendum est ei: et ita edictum se habet. Scaevola: sed magis sentio, ut, quemadmodum pro parte hereditatem retinet iure eo, quod bonorum possessionem petere posset, ita et conferri ei debeat, utique cum iniuriam per bonorum possessionem patiatur.
10 Scævola, Questions, Book V. If a son under the control of his father, after having been appointed his heir, enters upon his estate, and an emancipated son demands prætorian possession of the same contrary to the provisions of the will, and he himself does not do so, no contribution by way of collation should be made for his benefit; and it is so stated in the Edict. I think, however, that just as he can legally retain the estate in proportion to his share, because he can demand prætorian possession of it, so, also, he certainly should contribute by way of collation for the benefit of his brother, as the latter suffers wrong through his obtaining prætorian possession.
11 Paulus libro undecimo responsorum. Paulus respondit ea, quae post mortem patris filio reddi debuerunt, emancipatum filium, quamvis prius consecutus sit quam deberentur, fratri qui in potestate patris relictus est conferre non debere, cum post mortem patris non tam ex donatione, quam ex causa debiti ea possidere videatur.
11 Paulus, Opinions, Book XI. Paulus gives it as his opinion that an emancipated son is not obliged to make collation of such property as should be transferred to him after the death of his father, for the benefit of his brother who was left under paternal control, even if he obtained the said property before he was entitled to it; as he is held to have had possession of the same after the death of his father, not so much by virtue of the donation, as on account of the debt.
12 Paulus libro quadragensimo primo ad edictum. Si praegnantem quis uxorem reliquerit et ea ventris nomine in possessionem missa fuerit, interim cessat collatio: nam antequam nascatur, non potest dici in potestate morientis fuisse: sed nato conferetur.
12 The Same, On the Edict, Book XLI. Where anyone leaves a wife who is pregnant, and she obtains prætorian possession in the name of her unborn child, collation is suspended for a time; for before the child was born it could not be said to have been under the control of the deceased; but after it is born, collation must be made.