Javolenus, On the Last Works of Labeo, Book I. Where a slave has tertian or quartan fever, or gout or epilepsy, he it not held to be legally sound, even on days when he is free from these diseases.

Javolenus, On the Last Works of Labeo, Book I. A man had, by his son, two grandsons who were under puberty, one of whom was under his control, and the other was not. He wished them to inherit equal portions of his estate, and provided that, if either of them died before reaching the age of puberty, his share should be transferred to the other; and in compliance with the advice of Labeo, Ofilius, Cascellius, and Trebatius, he appointed as his sole heir the grandson who was under his control, and charged him with the delivery of half of his estate to his other grandson when he arrived at puberty, and substituted the other heir for the one who was under his control, if the latter should die before reaching that age. 1We can substitute two heirs under different conditions for a son under the age of puberty; for instance, one of them can be substituted if the son should have no children, and another child should be born and die before reaching the age of puberty. 2A certain testator appointed four heirs, and substituted others for all of them except one, and the one for whom no substitute had been appointed, as well as one of the others, died during the lifetime of the father. Ofilius and Cascellius held that the share of the one for whom no one had been substituted also belonged to the substitute of the deceased heir; which opinion is correct.

Javolenus, On the Last Works of Labeo, Book I. A father appointed his emancipated son his sole heir, and ordered that, if he should not become his heir, his slave should be free and be his heir. The son demanded prætorian possession of his father’s estate on the ground of intestacy, alleging that he was insane, and in this way obtained possession of it. Labeo says that if his father should be proved to have been of sound mind when he made his will, the son will be his heir by virtue of the will. I think that this opinion is incorrect, for where an emancipated son declines to accept an estate given to him by will, it immediately passes to the substituted heir; nor can he be held to have acted in the capacity of heir who demands prætorian possession under another section of the Edict, in order to avoid taking advantage of his rights under the will. Paulus: “Proculus disapproves of the opinion of Labeo, and adopts that of Javolenus.”

Javolenus, On the Last Works of Labeo, Book I. Antistius Labeo says that if an heir is appointed as follows: “Let him be my heir, if he will make oath”, he will, nevertheless, not become the heir at once, even though he should be sworn before he performs some act in that capacity; because by taking the oath he is held merely to have disclosed his intention. I think, however, that he has acted in the capacity of heir if he has taken the oath as such. Proculus entertains the same opinion, and this is our practice. 1Where a slave is appointed an heir, and is alienated after having been ordered by his master to accept the estate, before he does so, a new order by his second master, and not that of his old one, is required.

Javolenus, On the Last Works of Labeo, Book I. Where a condition has reference to a certain class of persons, and not to individuals who are well known, we think that it relates to the entire will, and to all the heirs who have been appointed; but where the condition only has reference to certain individuals, we should consider it as relating only to that degree in which the said parties have been appointed heirs. 1Where a clause was inserted in a will providing that a “building may be erected in the Forum,” and it is not stated in what Forum, Labeo says that if it does not appear what the intention of the deceased was, the building should be erected in the Forum of the town in which the party who made the will resided. I also approve this opinion.

Javolenus, On the Last Works of Labeo, Book I. There is a great difference between the conditions, “When he will be able to speak,” and “After he shall have been able to speak,” for it is established that the latter has a broader signification than the former, which only has reference to the time when the person can speak for the first time. 1Likewise, when a condition is stated as follows, “Do this in so many days,” if nothing more should be added, the condition must be complied with within two days.