Si tabulae testamenti nullae extabunt, unde liberi
(Where no Will is in Existence by Which Children May be Benefited.)
1 Ulpianus libro quadragensimo quarto ad edictum. Posteaquam praetor locutus est de bonorum possessione eius qui testatus est, transitum fecit ad intestatos, eum ordinem secutus, quem et lex duodecim tabularum secuta est: fuit enim ordinarium ante de iudiciis testantium, dein sic de successione ab intestato loqui. 1Sed successionem ab intestato in plures partes divisit: fecit enim gradus varios, primum liberorum, secundum legitimorum, tertium cognatorum, deinde viri et uxoris. 2Ita autem ab intestato potest competere bonorum possessio, si neque secundum tabulas neque contra tabulas bonorum possessio agnita sit. 3Plane si tempora quidem petendae bonorum possessionis ex testamento largiebantur, verumtamen repudiata est bonorum possessio, dicendum erit ab intestato bonorum possessionem iam incipere: cum enim is qui repudiavit petere bonorum possessionem non potest post repudiationem, consequens erit, ut ab intestato posse peti incipiat. 4Sed et si ex Carboniano edicto bonorum possessio data sit, magis est, ut dicere debeamus ab intestato nihilo minus posse peti: ut enim suo loco ostendimus, non impedit bonorum possessionem edictalem Carboniana bonorum possessio. 5Recte autem praetor a liberis initium fecit ab intestato successionis, ut, sicuti contra tabulas ipsis defert, ita et ab intestato ipsos vocet. 6Liberos autem accipere debemus quos ad contra tabulas bonorum possessionem admittendos diximus, tam naturales quam adoptivos. sed adoptivos hactenus admittimus, si fuerint in potestate: ceterum si sui iuris fuerint, ad bonorum possessionem non invitantur, quia adoptionis iura dissoluta sunt emancipatione. 7Si quis filium suum emancipatum in locum nepotis adoptavit et emancipavit, cum haberet et nepotem ex eo, quaesitum est apud Marcellum, an adoptio rescissa impediat nepotem. sed cum soleat emancipato patri iungi nepos, quis non dicat, etsi adoptatus sit et quasi filius, nihilo minus filio suo eum non obstare, quia quasi filius adoptivus est in potestate, non quasi naturalis? 8Si heres institutus non habeat voluntatem, vel quia incisae sunt tabulae vel quia cancellatae vel quia alia ratione voluntatem testator mutavit voluitque intestato decedere, dicendum est ab intestato rem habituros eos, qui bonorum possessionem acceperunt. 9Si emancipatus filius exheres fuerit, is autem qui in potestate fuerat praeteritus, emancipatum petentem ab intestato bonorum possessionem unde liberi tueri debet praetor usque ad partem dimidiam, perinde atque si nullas tabulas pater reliquisset.
1 Ulpianus, On the Edict, Book XLIV. The Prætor, after speaking of the possession of the property of those who execute wills, passes to intestate estates, following the same order adopted by the Law of the Twelve Tables; for it is usual to first treat of the wills of testators, and afterwards of intestate succession. 1The Prætor, however, divided intestate succession into four classes. Of the various degrees, the first he establishes is that of children, the second that of heirs at law, the third of cognates, and the fourth of husband and wife. 2Prætorian possession of an estate ab intestato can only be acquired where no one appears to demand possession in accordance with the provisions of the will, or in opposition thereto. 3It is clear that if the prescribed time for demanding prætorian possession of an estate in accordance with the terms of the will has not expired, but possession of the estate has been rejected, it must be said that prætorian possession of the same ab intestato may be demanded at once. For he who rejected the estate cannot demand prætorian possession after having done so, and the result will be that he can immediately make the claim for possession on the ground of intestacy. 4If, however, possession of an estate is granted under the Carbonian Edict, the better opinion is for us to hold that prætorian possession on the ground of intestacy can still be demanded, for, as we shall show in its proper place, prætorian possession under the Carbonian Edict does not interfere with that obtained by the Prætorian Edict. 5In the case of succession ab intestato, the Prætor very properly begins with the descendants; for, just as he grants them (before all others), possession contrary to the provisions of the will, so he calls them first to the succession in case of intestacy. 6Moreover, we must understand the term “descendants” to mean those whom we have stated to be entitled to prætorian possession contrary to the provisions of the will; that is to say, natural, as well as adopted children. We admit adopted children, however, only where they were under paternal control, at the time of their father’s death. If, however, they were their own masters at that time, we do not permit them to obtain prætorian possession of the estate, because the rights of adoption are extinguished by emancipation. 7If anyone adopts his emancipated son, instead of his grandson, and then again emancipates him while he has a grandson by him, the question was raised by Marcellus whether, after the adoption was rescinded, this would be an obstacle to the grandson desiring to obtain prætorian possession on the ground of intestacy. But as the grandson is ordinarily joined with the emancipated father, cannot it be said that, though the latter was adopted and occupied the place of a son, still, he should not stand in the way of his own child? For the reason that he was under paternal control as an adopted, and not as a natural son. 8If an appointed heir cannot take advantage of the will, either because it has been erased or cancelled, or because the testator is shown to have changed his mind in some other way, and that he intended to die intestate, it must be said that those who obtain prætorian possession of the estate will be entitled to it on the ground of intestacy. 9Where an emancipated son is disinherited, and a son who was under paternal control is passed over in the will, the Prætor should protect the emancipated son who claims possession of the estate on the ground of intestacy under the provision unde liberi, so far as half of the estate is concerned, just as if the father had left no will.
2 Iulianus libro vicensimo septimo digestorum. Emancipatus praeteritus si contra tabulas bonorum possessionem non acceperit et scripti heredes adierint hereditatem, sua culpa amittit paternam hereditatem: nam quamvis secundum tabulas bonorum possessio petita non fuerit, non tamen eum praetor tuetur, ut bonorum possessionem accipiat unde liberi. nam et patronum praeteritum, si non petat contra tabulas bonorum possessionem, ex illa parte edicti, unde legitimi vocantur, non solet tueri praetor adversus scriptos heredes.
2 Julianus, Digest, Book XXVII. Where an emancipated son, who was passed over, does not demand prætorian possession of the estate contrary to the provisions of the will, and the appointed heirs enter upon the estate, he will lose his father’s estate by his own fault, for although prætorian possession in accordance with the provisions of the will may not have been demanded, the Prætor still will not protect him so as to enable him to obtain prætorian possession as a descendant. The Prætor is not accustomed to protect a patron who has been passed over in the will against the appointed heirs, if he does not demand prætorian possession of the estate contrary to the provisions of the will, under that Section of the Edict which refers to heirs at law.
3 Ulpianus libro octavo ad Sabinum. Bonorum possessio potest peti ab intestato, si certum sit tabulas non extare septem testium signis signatas.
3 Ulpiamis, On Sabinus, Book VIII. Prætorian possession of an estate can be demanded on the ground of intestacy, when it is certain that the will has not been signed by at least seven witnesses.
4 Paulus libro secundo ad Sabinum. Liberi et capite minuti per edictum praetoris ad bonorum possessionem vocantur parentium, nisi si adoptivi fuerint: hi enim et liberorum nomen amittunt post emancipationem. sed si naturales emancipati et adoptati iterum emancipati sint, habent ius naturale liberorum.
4 Paulus, On Sabinus, Book II. Children, even those who have lost their civil rights, are called to the possession of an estate under the Edict of the Prætor, unless they have been adopted, for the latter lose the name of children after emancipation. If, however, they are natural children, and have been emancipated and adopted, and emancipated a second time, they retain their original character of natural children.
5 Pomponius libro quarto ad Sabinum. Si quis ex his, quibus bonorum possessionem praetor pollicetur, in potestate parentis, de cuius bonis agitur, cum is moritur, non fuerit, ei liberisque, quos in eiusdem familia habebit, si ad eos hereditas suo nomine pertinebit neque nominatim exheredes scripti erunt, bonorum possessio eius partis datur, quae ad eum pertineret, si in potestate permansisset, ita, ut ex ea parte dimidiam habeat, reliquum liberi eius, hisque dumtaxat bona sua conferat. 1Sed et si filium et nepotem ex eo pater emancipaverit, filius solus veniet ad bonorum possessionem, quamvis capitis deminutio per edictum nulli obstet. quin etiam hi quoque, qui in potestate numquam fuerunt nec sui heredis locum optinuerunt, vocantur ad bonorum possessionem parentium. nam si filius emancipatus reliquerit in potestate avi nepotem, dabitur ei, qui in potestate relictus sit, patris emancipati bonorum possessio: et si post emancipationem procreaverit, ita nato dabitur avi bonorum possessio, scilicet non obstante ei patre suo. 2Si filius emancipatus non petierit bonorum possessionem, ita integra sunt omnia nepotibus, atque si filius non fuisset, ut quod filius habiturus esset petita bonorum possessione, hoc nepotibus ex eo solis, non etiam reliquis adcrescat.
5 Pomponius, On Sabinus, Book IV. Where one of those children to whom the Prætor promises the possession of an estate is not under the control of the parent whose property was in dispute at the time of his death, the possession of that share of the estate to which he would have been entitled if he had remained under paternal control is granted to him, and to his children who were under the control of the deceased, if the estate belonged to him in his own name and they were not specifically disinherited; so that he himself will only have half of said share, and the other half will be given to his children, and he can distribute his own property among them alone, without any restriction. 1If a father should emancipate his son and his grandson by the latter, the son alone will be entitled to the possession of his estate on the ground of intestacy, although the loss of civil rights would not be an obstacle to anyone in distributing the estate under the Edict. Moreover, those children who have never been under paternal control, and have not obtained the place of proper heirs, are called to the prætorian possession of the estate of their parents; for if an emancipated son should leave a grandson under the control of his grandfather, prætorian possession of the estate of the emancipated father shall be given to the child who remains under the control of his grandfather; and, if the latter should have been begotten after the emancipation of his father, prætorian possession of the estate of his grandfather will be given to him after his birth; provided the condition of his father offers no obstacle to this being done. 2If an emancipated son should not demand prætorian possession of an estate on the ground of intestacy, all of the rights of the grandsons will remain unimpaired, just as if there had been no son; and what the son would have been entitled to if he had demanded prætorian possession of the estate of his father on the ground of intestacy will accrue to the grandsons alone who are descendants of the said son, and not to any others.
6 Ulpianus libro trigensimo nono ad edictum. Si pater filium emancipaverit, nepotem retinuerit, deinde filius decesserit: et rei aequitas et causa edicti, quo de bonorum possessione liberis danda cavetur, efficit, ut eius ratio habeatur et bonorum possessio intestato patris detur, ut tamen bona sorori, quae necessaria heres patri extitit, conferre cogatur avus, qui per eum bonorum possessionis emolumentum adquisiturus est: nisi forte avus iste nullum ex his fructum adquirere vult paratusque est de potestate nepotem demittere, ut ad emancipatum emolumentum omne bonorum possessionis perveniat. nec idcirco soror, quae patri heres extitit, iuste queri poterit, quod eo facto a collationis commodo excluditur, cum avo quandoque intestato defuncto ad bona eius simul cum fratre possit venire.
6 Ulpianus, On the Edict, Book XXXIX. If a father should emancipate his son, retaining his grandson under his control, and his son should afterwards die, both the equity of the case and the terms of the Edict by which it is provided that prætorian possession of the estate of a father shall be granted to his children, on the ground of intestacy, will have the effect of causing an account to be taken, and the possession of the estate of the intestate father to be delivered; so that the grandfather who will obtain the benefit of prætorian possession of the estate through his grandson will be compelled to make contribution to a sister who becomes her father’s necessary heir; unless the grandfather should not wish to obtain any benefit from the property, and is ready to release his grandson from his control in order that, after his emancipation, he may obtain all the advantages of prætorian possession. Therefore, the sister, who becomes the heir of her father, cannot justly complain of being in this way excluded from the benefit of contribution; since, if her grandfather sliould die intestate, she will be entitled to share equally with her brother in his estate.
7 Papinianus libro vicensimo nono quaestionum. Scripto herede deliberante filius exheredatus mortem obit atque ita scriptus heres omisit hereditatem. nepos ex illo filio susceptus avo suus heres erit neque pater videbitur obstitisse, cuius post mortem legitima defertur hereditas. nec dici potest heredem, sed non suum nepotem fore, quod proximum gradum numquam tenuerit, cum et ipse fuerit in potestate neque pater eum in hac successione praevenerit. et alioquin si non suus heres est, quo iure heres erit, qui sine dubio non est adgnatus? ceterum et si non sit exheredatus nepos, adiri poterit ex testamento hereditas a scripto herede filio mortuo: quare qui non obstat iure intestati, iure testati videbitur obstitisse. 1Non sic parentibus liberorum, ut liberis parentium debetur hereditas: parentes ad bona liberorum ratio miserationis admittit, liberos naturae, simul et parentium commune votum.
7 Papinianus, Questions, Book XXIX. A disinherited son died while the testamentary heir was deliberating whether or not he would accept the estate, and he finally rejected it. The grandson, by the said disinherited son, will be the heir of his grandfather, nor will his father be considered as an obstacle to this, since it was after his death that the estate came to the grandson as heir at law. It cannot be said that the grandson is the heir, but not the direct heir, of his grandfather, because he was never in the first degree; as he himself was under the control of his grandfather, and his father did not precede him in the succession. And, besides, if he was not a direct heir, under what right will he be the heir, as there was no doubt that he was not an agnate? Moreover, even if the grandson should not be disinherited, the estate can be entered upon by the testamentary heir after the death of the son. Therefore, if the father was no obstacle to the son by the right of intestacy, he will be considered to have been an obstacle under the right conferred by the will. 1Parents are not entitled to the estates of their children in the same manner as children are entitled to the estates of their parents. It is only the consideration of compassion which entitles parents to the estates of their children, but children obtain those of their parents on account of the intention of nature, as well as that of their parents.
8 Idem libro sexto responsorum. Filius familias ut proximus cognatus patre consentiente possessionem adgnovit: quamvis per condicionem testamento datam, quod in patris potestate manserit, ab hereditate sit exclusus, tamen utiliter possessionem adgnovisse videbitur nec in edicti sententiam incidet, quoniam possessionem secundum tabulas non adgnovit, cum inde rem habere non poterit nec in filii potestate condicio fuerit nec facile pater emancipare filium cogi poterit.
8 The Same, Opinions, Book VI. A son under paternal control, with the consent of his father, took prætorian possession of an estate as the next of kin to the deceased. Although he should be excluded from the estate by the condition stated in the will, if he remained under the control of his father, still he must be considered to have obtained possession legally. He is not liable to the penalty of the Edict, as he did not obtain possession in accordance with the provisions of the will; as in that way he could not hold the.property, nor was it in his power to comply with the condition, as a father cannot easily be forced to emancipate his son.
9 Paulus libro undecimo responsorum. Si postea, quam filius emancipatus bonorum possessionem patris petit, statum suum mutavit, nihil obesse ei, quo minus id quod adquisiit retineat: quod si prius condicionem suam mutavit, bonorum possessionem eum petere non posse.
9 Paulus, Opinions, Book XI. If a son, after having been emancipated, demands prætorian possession of the estate of his father, and subsequently changes his condition, there is no reason why he should not retain what he has acquired. If, however, he had changed his condition beforehand, he cannot demand prætorian possession of the estate.