Corpus iurisprudentiae Romanae

Repertorium zu den Quellen des römischen Rechts

Digesta Iustiniani Augusti

Recognovit Mommsen (1870) et retractavit Krüger (1928)
Convertit in Anglica lingua Scott (1932)
Dig. XXXVII6,
De collatione bonorum
Liber trigesimus septimus
VI.

De collatione bonorum

(Concerning the Collation of Property.)

1Ul­pia­nus 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.

1Ulpianus, 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.

2Pau­lus 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.

2Ulpianus, 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.

3Iu­lia­nus 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.

3Julianus, 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.

4Afri­ca­nus 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.

4Africanus, 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.

5Ul­pia­nus 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.

5Ulpianus, 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.

6Cel­sus 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.

6Celsius, 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.

7Idem 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.

7The 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.

8Pa­pi­nia­nus 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.

8Papinianus, 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.

9Idem 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.

9The 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.

10Scae­vo­la 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.

10Scævola, 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.

11Pau­lus 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.

11Paulus, 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.

12Pau­lus 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.

12The 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.