De coniungendis cum emancipato liberis eius
(Concerning the contribution to be made between an emancipated son and his children.)
1 Ulpianus libro quadragensimo ad edictum. Si quis ex his, quibus bonorum possessionem praetor pollicetur, in potestate parentis, cum is moritur, non fuerit, ei liberisque quos in eiusdem familia habuit, si ad eos hereditas suo nomine pertinebit neque notam exheredationis meruerunt, bonorum possessio eius partis datur, quae ad eum pertineret, si in potestate permansisset, ita ut ex ea parte dimidiam, reliquam liberi eius hisque dumtaxat bona sua conferat. 1Hoc edictum aequissimum est, ut neque emancipatus solus veniat et excludat nepotes in potestate manentes, neque nepotes iure potestatis obiciantur patri suo. 2Et in adoptionem datus filius et heres institutus ad hoc edictum pertinet, ut ei iungatur nepos, qui in avi sui naturalis potestate est. iungitur autem nepos patri suo emancipato, sive pater praeteritus sit sive institutus. et haec erit differentia inter in adoptionem datum et emancipatum, quod in adoptionem quidem dato non alias iungitur nisi instituto et alio committente edictum, emancipato autem, sive sit institutus emancipatus sive sit praeteritus. 3Filio in potestate ex besse, emancipato ex triente herede instituto Iulianus ait nepotem praeteritum petita contra tabulas bonorum possessione patruo sextantem, patri unciam ablaturum. 4Si pater emancipatus exheredatus sit nepotibus ex eo praeteritis qui erant in potestate retenti, nepotes admittuntur: absurdum enim est, cum patri praeterito iungantur, instituto eo vel exheredato non admitti. 5Sed et si patruus eorum, qui erat in potestate, sit praeteritus, pater exheredatus, debent nepotes admitti: nam exheredatus pater eorum pro mortuo habetur. 6Si pater in potestate manens exheredatus vel institutus sit, nepotem ex eo sive in potestate manentem sive emancipatum ad bona avi neque vocari neque vocandum esse Scaevola ait: totiens enim nepoti consulendum est, quotiens in potestate retentus est patre emancipato. liberos igitur in familia esse oportet, ut huic edicto locus sit, eius scilicet familia, cuius bonorum possessio petitur. sed et si postumus natus sit ex emancipato ante emancipationem conceptus, idem erit dicendum. 7Liberos autem non omnes simul vocat praetor, sed gradatim, hoc est eos, qui sui sunt, scilicet nepotes, si sunt, si minus, eos qui sunt inferioris gradus: nec eos miscebimus. plane si sint ex emancipato nepos et ex nepote eius alio pronepos, dicendum erit utrumque ei iungi: ambo enim in suorum loco successerunt. 8Si postliminio nepos redierit, dicendum est eum patri emancipato coniungi. 9Si pater ex duobus filiis, quos in potestate habuit, alterum emancipaverit et nepotem ex eo in locum filii adoptaverit et praeterito emancipato decesserit: Iulianus ait nepoti in locum filii adoptato succurri oportere, ut quasi filius portionem habeat, quam haberet et si extraneus adoptatus esset. sic fiet, inquit, ut filius, qui in potestate fuit, tertiam partem, nepos in locum filii adoptatus aliam tertiam emancipatus filius cum nepote altero retento in potestate partiatur: nec enim minus debet ferre nepos in locum filii adoptatus, quam si ab extraneo esset adoptatus. 10Illud non interest, quota portio hereditatis ad nepotem pertineat, an perquam modicam: nam et si modica sit, attamen dicemus locum esse huic parti edicti. 11Inter ipsum filium et liberos eius dividitur hereditas ita, ut ipse dimidium, liberi dimidium habeant. proinde pone solum esse filium emancipatum, esse et nepotes in potestate duos, neminem praeterea ex liberis: habebit emancipatus dimidiam partem hereditatis et aliam dimidiam duo nepotes, ut quadrantes ferant. sed si sit praeterea alius filius, eveniet, ut filius habeat dimidiam partem hereditatis, ex quo nepotes non sunt, alius filius semissem cum filiis suis ita, ut quadrantem hereditatis ipse ferat, quadrans inter liberos eius dividatur. sed si ambo filii sint emancipati et habeant singuli nepotes, eveniet, ut singuli singulos semisses cum nepotibus suis dividant ita, ut ipsi quidem quadrantes ferant, nepotes autem residuos quadrantes: et si alter duos filios, alter tres habeant, quadrans unus inter duos, alius inter tres dividitur. 12Si quis ex nepotibus portionem suam omiserit, eveniet, ut non ad patrem eius, sed magis ad fratrem pertineat. sed et si omnes nepotes omittant, patruo nihil adcrescet, sed soli patri: quod et si pater omiserit, tunc patruo adcrescet. 13Emancipatus filius si quidem nepotes in avi potestate non habeat, fratribus suis conferet: sed si sint nepotes, voluit eum praetor filiis suis qui sunt in potestate solis conferre, merito, quia veniendo ad bonorum possessionem illis solis iniuriam facit. 14Nunc videamus, quantum eis conferat. et quidem semper, cum fratribus emancipatus confert, virilem sibi detrahit: utrum et in eo casu virilem detrahat, an vero, quia dimidiam partem habeat bonorum possessionis, dimidiam partem etiam bonorum suorum conferat? et puto dimidiam tantum bonorum eis partem conferre: nam et si alius emancipatus sit filius, alius in potestate retentus, filius emancipatus his duobus nepotibus unam partem tantum conferet et patruo eorum qui in potestate mansit unam partem dabit, tertiam ipse habebit: nec quod nepotibus confertur a patruo emancipato, ipsi patri conferent: hoc enim non de bonis avi, sed propter bona postea eis accessit. 15Eveniet igitur, ut pater emancipatus si centum in bonis habeat, quinquaginta sibi detrahat, residua quinquaginta omnibus nepotibus, id est filiis suis conferat, aut si unum nepotem habeat et duos ex alio pronepotes, ita dividat quinquaginta, ut nepos habeat viginti quinque, pronepotes ex alio una viginti quinque: nam et bonorum possessionis ambo unam partem habent. 16Si sit filius in potestate, alius emancipatus, ex defuncto unus nepos in potestate, alius nepos emancipatus, eleganter Scaevola tractat, patruus emancipatus quantum nepotibus, quantum fratri suo conferat. et ait posse dici tres eum partes facere, unam sibi, unam fratri, unam istis collaturum: quamvis hi minus quam patruus ex hereditate avi concurrente patre sint habituri: quae sententia vera est. 17Sed et si sint duo nepotes ex eodem filio hique emancipati sunt et ex altero eorum pronepos in potestate defuncti: partem habebit nepos unus, aliam nepos cum filio suo. sed et si nepos et ex alio nepote defuncto duo pronepotes: unus ex pronepotibus emancipatus soli fratri suo conferat vel, si frater non est, soli patruo, non etiam patruo maiori.
1 Ulpianus, On the Edict, Book XL. Where anyone of those to whom the Prætor promises the possession of an estate is not under paternal control at the time of the death of his father, and he has children forming part of the family of the testator, and the estate will belong to them in their own right, and they have not been disinherited, possession of his share of the estate which would have belonged to him if he had remained under the control of his father is given him by the Prætor, in such a way that his share will be divided into two parts, one of which will belong to him, and the other to his children, and he will be compelled to place his own property in collation for their benefit alone. 1This Section of the Edict is perfectly equitable, as it provides that the emancipated son cannot alone obtain the estate, and thereby exclude the grandsons remaining under paternal control, and the grandsons cannot interfere with their father on the ground that they themselves were under the control of the testator. 2The case where a son is given in adoption, and a grandson, who is under the control of his natural grandfather, is joined with him in the succession, is also referred to in this Section of the Edict. Moreover, the grandson is joined with his emancipated father, whether his father was passed over, or was appointed an heir. There is this difference, however, between a son given in adoption and one who is emancipated, namely: the grandson is not joined with the one given in adoption unless he has been appointed an heir, and a third part is responsible for the Edict taking effect; but he is joined with an emancipated son, whether the latter was appointed an heir or passed over in the will. 3Julianus says that, where a son under paternal control is appointed an heir to two-thirds of the estate, and an emancipated son to one-third, if the grandson who has been passed over should obtain prætorian possession contrary to the provisions of the will, he will take from his uncle one-sixth, and from his father one-twelfth of the estate. 4If the emancipated father should be disinherited, and his children, the grandsons of the testator under paternal control, should be passed over, the said grandsons will be permitted to obtain prætorian possession; for it is absurd that, as they were joined with their father, and he was passed over in the will, they should not be admitted to prætorian possession, when their father has either been appointed an heir, or disinherited. 5If the uncle of the said grandchildren, who was under parental control, was passed over in the will, and their father should be disinherited, the said grandsons must be permitted to obtain prætorian possession, as their father, having been disinherited, is considered as dead. 6Scævola says that if a father, who remains under paternal control, is either disinherited or appointed an heir, a son born to him, whether he remains subject to paternal authority or has been emancipated, cannot, and should not be called to the succession of his grandfather; for the Prætor only provides for a grandson as long as he is retained under the control of the testator, his father having been emancipated. Therefore, for this Section of the Edict to be applicable, children must remain in the family, that is to say, that family the possession of whose estate is demanded. If, however, a posthumous child, having been conceived before his emancipation, should be born to the emancipated son, the same rule must be held to apply. 7The Prætor does not call all the descendants to the succession indiscriminately, but according to their several degrees; that is to say, first the direct heirs, for instance, the grandsons, if there are any, and if there are none, those of a lower degree; but we must not mix them. It is clear that if a grandson is descended from an emancipated son, and a great-grandson from another grandson, it must be said that both of them should be joined, for both have succeeded to the place of direct heirs. 8If a grandson should return under the law of postliminium, it must be held that he should be joined with his emancipated father. 9If a father should emancipate one of his two sons, both of whom he has under his control, and adopt a grandson by one of them, instead of his son, and, having passed over his emancipated son in his will, should die, Julianus says that relief must be granted the grandson who was adopted instead of the son, so that, in the capacity of son, he will have that share of the estate to which a stranger would have been entitled if he had been adopted by the testator. He says that the result will be that the son under paternal control will be entitled to a third part of the estate; the grandson adopted instead of the son will be entitled to another third; and the emancipated son will divide the remaining third with the other grandson remaining under the control of the testator. 10It makes no difference to what portion of the estate the grandson may be entitled, or even if it is very small; for in case it is insignificant, we still hold that there will be ground for the application of this Section of the Edict. 11The estate is divided between the son and his children so that he will obtain one-half, and they the other. Hence, if you suppose that there is only one son emancipated, and two grandsons remaining under paternal control, and that there are no other descendants besides these, the emancipated son will be entitled to half of the estate, and the two grandsons to the other half, after dividing it into fourths. If there should happen to be another son from whom no grandsons have ascended, he will be entitled to half the estate, and the other son, along with his sons, to the other half, so that he himself will have a fourth of the estate, and the other fourth will be divided among his children. Where, however, both sons have been emancipated, and both of them have issue, the result will be that each must divide half of the estate with his children, so that they themselves will each have a fourth, and their children respectively the remaining fourth. If one of them has two sons, and the other three, one-fourth will be divided among the two, and the other among the three children. 12Where one of the grandchildren refuses to accept his share of the estate, the result will be that his share will not belong to his father, but preferably to his brother. If, however, all the grandchildren refuse to accept their shares, none of them will accrue to the uncle, but to the father alone. If, however, their father should refuse them, then they will accrue to their uncle. 13If an emancipated son has no children under the control of their grandfather, the testator must place his property in collation for the benefit of his brothers. If there are any grandchildren, the Prætor wishes him to make collation only for the benefit of those of his children who are under the control of their grandfather. This is reasonable, because by obtaining prætorian possession of the estate he prejudices only the rights of his children. 14Now let us see how much he must contribute for their benefit. And, indeed, when the emancipated son makes collation for the benefit of his brothers, does he always deduct his own share for himself? And, in the above-mentioned instance, shall he deduct his entire share, or must only half of his own private property be placed in the mass of the estate, as he only is entitled to half of the share of what is obtained by prætorian possession? I think that he should contribute only half of his own private property for their benefit; but even if one son has been emancipated, and the other remains under the control of the testator, the emancipated son will only contribute one share for the benefit of the two grandsons, and one-third for the benefit of the uncle of those retained under the power of the testator, and he himself will be entitled to the other third. For whatever is placed in collation for the grandsons by the emancipated uncle, they themselves will not place in collation for the benefit of their own father; for they do not obtain this from the estate of their grandfather, but it is done on account of property which they have subsequently received. 15Hence, the result will be that if the emancipated father has a hundred aurei among his property, he will retain fifty for himself, and give the remaining fifty in collation to all the grandchildren, that is to say, to his own children; or if he has one grandson, and two great-grandsons by another grandson, he must divide the fifty aurei so that the grandson may have twenty-five, and the great-grandsons twenty-five together; for both are entitled to only one share in the prætorian possession of the estate. 16Scævola ingeniously discusses the following question, namely: where there is one son under the control of his father, and another is emancipated, and a grandson of a deceased son under the control of the testator, and another grandson who has been emancipated, how much should the emancipated uncle place in collation for the benefit of his nephews, and how much for that of his brother? He says it can be held that the property ought to be divided into three shares, one of which he shall retain, one shall be placed in collation for the benefit of his brother, and one for that of his nephews, although the latter, if they share with their father in the estate of their grandfather, will have less than their uncle. This opinion is correct. 17Even if there are two grandsons by the same son, and they are emancipated, and a great-grandson by one of them was under the control of the deceased, one grandson will have one share of the estate and the other grandson, together with his son, will be entitled to the other. If there is a grandson, and two great-grandsons by another grandson who is dead, and one of the said great-grandsons has been emancipated, he will only make collation for the benefit of his brother, or if he has no brother, for the benefit of his uncle, and not for that of his great uncle.
2 Paulus libro quadragensimo primo ad edictum. Nihil in hac parte edicti cavit praetor, ut legata exceptis personis nepos praestet: sed potest superior sermo et ad hunc casum referri. nam absurdum est patrem quidem eius legata praestare, ipsum vero plus habere, cum eadem condicione in eandem partem vocantur.
2 Paulus, On the Edict, Book XLI. In this section of the Edict the Prætor makes no provision with reference to legacies which the grandson shall pay to privileged persons. What has previously been said on this point is applicable here, for it is absurd that the father of the grandson should be obliged to pay such legacies, and that the grandson should have more, where, under the same circumstances, he is called to the same share under the Prætorian Law.
3 Marcellus libro nono digestorum. Qui duos filios habebat, alterum ex his emancipavit, nepotem ex eo in potestate retinuit: emancipatus filium sustulit et a patre exheredatus est: quaero, cum frater eius et ipse emancipatus praeteritus sit et nepotes ex emancipato filio ab avo heredes instituti, quid de bonorum possessione iuris sit? et quid intersit, si emancipatum quoque, ex quo nepotes erant nati, praeteritum esse ponamus. respondi, si filium retento ex eo nepote emancipaverit et emancipatus procreaverit filium et heres uterque nepos institutus fuerit, pater eorum exheredatus, alius filius praeteritus: solus filius praeteritus bonorum possessionem contra tabulas petere poterit: exheredatus enim obstat filiis suis post emancipationem susceptis. nepoti tamen retento in potestate bonorum possessio dari debet, quoniam, si pater eius emancipatus praeteritus esset, simul cum eo bonorum possessionem accipere posset propter id caput edicti, quod a Iuliano introductum est, id est ex nova clausula, nec debet deterioris esse condicionis, quia pater eius exheredatus sit. idque ei praeterito quoque praestari oportebit. sed fratris eius, qui post emancipationem natus est, diversa condicio est: conservanda est tamen et illi ad virilem partem hereditas, sicut etiam imperator Antoninus in persona nepotis ex filia rescripsit.
3 Marcellus, Digest, Book IX. A father who had two sons emancipated one of them, and retained his grandson by the latter under his control. The emancipated son himself had a son, who was disinherited by his father. I ask, if his brother and the emancipated son himself should be passed over in the will, and the grandsons of the emancipated son be appointed by the grandfather heirs to his estate, what would be the rule, in case of prætorian possession, and what difference would it make if we suppose that the emancipated son, from whom the grandsons were descended, should also be passed over in the will? I answered that if the testator should have emancipated his son, and retained the grandson by the latter under his control, and the emancipated son should have a son, and both grandsons should be appointed heirs, and their father be disinherited, and the other son passed over, the latter alone could demand prætorian possession in opposition to the terms of the will; for the disinherited son is an impediment in the way of his own children born after emancipation. Prætorian possession should, however, be granted to the grandson remaining under the control of his grandfather; as, if his father, who had been emancipated, should be passed over in the will, he can obtain prætorian possession of the estate under that Section of the Edict which was introduced by Julianus; that is to say, under the new clause. Nor would he be in worse condition because his father was disinherited, and he must be shown the same consideration if he himself had been passed over in the will. The condition of his brother, however, who was born after emancipation, is different; for the estate must be preserved for his benefit, so far as his entire share is concerned, as the Emperor Antoninus stated in a Rescript with reference to a granddaughter, the child of the daughter of the testator.
4 Modestinus libro sexto pandectarum. Emancipato quis filio retinuit ex eo nepotes in potestate: filius emancipatus susceptis postea liberis decessit. placuit in avi potestate manentes simul cum his, qui post emancipationem nati sunt, decreto bonorum possessionem accipere, manente eo, ut, si velit avus sibi per nepotes adquiri, bona sua conferat aut nepotes emancipet, ut sibi emolumentum paternae hereditatis adquirant: idque ita divus Marcus rescripsit.
4 Modestinus, Pandects, Book XVI. A certain man, having emancipated his son, retained the children of the latter under his control. The emancipated son, having had children, afterwards died. It was decided that those grandchildren who remained under the control of their grandfather, were, by virtue of a special decree, entitled to prætorian possession of the estate of the latter, together with those who were born after the emancipation, with the exception that, if the grandfather desired to obtain the estate of his son, by means of his grandchildren, he could place his property in collation, or he could emancipate them, in order that they might obtain for themselves the benefit of their father’s estate. This the Divine Marcus stated in a Rescript.
5 Idem libro sexto differentiarum. Si nepos exheredatus heres extiterit ei, quem avus heredem fecerat, deinde pater eius emancipatus testamento praeteritus accipiat contra tabulas patris bonorum possessionem, iungi patri suo nepos non poterit, sed ut extraneus excludetur, quia non suo nomine avo heres extiterit.
5 The Same, Differences, Book VI. If the disinherited grandson should become the heir of him whom the grandfather appointed his heir, and then his emancipated father, who had been passed over in the will, should obtain prætorian possession of the estate of his father contrary to the provisions of the will, the grandson could not be joined with his father, but would be excluded as a stranger, because he is not the heir of his grandfather in his own right.
6 Scaevola libro quinto quaestionum. Si quis filium habens in potestate extraneum in nepotis locum quasi ex eo filio natum adoptet, mox filium emancipet, non iungetur hic nepos filio emancipato, quia desiit esse emancipato ex liberis.
6 Scævola, Questions, Book V. Where anyone who has a son under his control adopts a stranger in the place of his grandson, just as if he had been born to his son, and afterwards emancipated his son, the grandson will not be joined with the emancipated son in the prætorian possession, because he has ceased to be included among the children of the latter.
7 Tryphoninus libro sexto decimo disputationum. Si post emancipationem filii susceptus ex eo fuerit nepos, conservanda illi erit portio, sed quanta videamus. finge enim patruo scripto heredi coheredem datum hunc nepotem, patrem autem eiusdem praeteritum accepisse contra tabulas bonorum possessionem. quod ad edictum praetoris attinet, semisses bonorum fient: nunc vero post constitutionem divi Pii si conservatur pars nepoti, utrum virilis an quarta debeat servari? nam si in avi natus potestate fuisset, coniungebatur in unam partem cum patre suo. et proponamus esse alium ex eodem nepotem in familia avi: duo unam quartam habituri erant patre eorum accipiente contra tabulas bonorum possessionem, si fuissent in avi potestate: an ergo nunc in sescunciam tuendus sit, qui non in familia retentus est? et cui abscedet pars, quae huic cessura est, patri eius tantum an et patruo? et puto et patruo: nam et legatum eidem datum praestaret.
7 Tryphoninus, Disputations, Book XVI. If a testator, after the emancipation of his son, has a grandson by the latter, his share of the estate of his grandfather must be preserved for him. Let us, however, see how much this will amount to. For suppose that the grandson was appointed co-heir with his uncle, and that the father of the said grandson, having been passed over in the will, should obtain prætorian possession contrary to the testamentary provisions, in accordance with the terms of the Prætorian Edict, the property of the estate would be divided into two parts. Now, however, after the Constitution of the Divine Pius has been promulgated, must that to which the grandson is entitled be his entire share, or merely a fourth? For if, after his birth, he had been under the control of his grandfather, he will be joined with his father, and both together will be entitled to half of the estate. Let us suppose that there was another grandson, descended from the same son, and belonging to the family of the grandfather, the two grandsons together would be entitled to a fourth of the estate, if their father had obtained prætorian possession in opposition to the terms of the will, and they had been under the control of their grandfather. Must he who had not been retained in the family now be permitted to receive an eighth of the estate? And who must be deprived of his share to obtain what is given him? Would it be taken only from his father, or from his uncle as well? I think it would only be taken from his uncle, for he would be compelled to pay the legacy bequeathed to the said grandson.