Julianus, Digest, Book XXIII. Where an emancipated son obtains prætorian possession of an estate in opposition to the terms of the will, the appointed heir will be compelled to surrender to him the lands and slaves belonging to the estate; for it is only just that everything which the appointed heir has obtained from the estate should be transferred to him whom the Prætor has appointed in his place. 1Where anyone has two sons, and gives in adoption a grandson by one of them, and appoints him his heir, after having passed over the other son, the question arises what rule should be followed in this instance, and whether the grandson should obtain merely the share of his father, or a full share of the inheritance. I answered that where a grandson is given in adoption and appointed an heir, as long as his father is under the control of another, or is emancipated, he cannot obtain prætorian possession in opposition to the terms of the will. If, however, his father should die before obtaining prætorian possession of the estate, the grandson will not be permitted to claim it. 2If a father, after having passed over an emancipated son, should appoint his other two sons his heirs, one of them being still under his control, and the other given in adoption, and two grandsons by the latter belonging to the family were also passed over in the will, the emancipated son, the son who remained under his father’s control, and the one given in adoption, together with his two children, can each demand possession of a third of the estate, in such a way that the last one mentioned will be entitled to a sixth, and his children to another sixth of the same. 3Where a father, who had two sons, emancipated one of them who himself had children, and afterwards adopted one of the grandsons whom he had previously emancipated, instead of his son, died after having passed over the emancipated son in his will, it would be but just to grant relief to the grandson who took the place of the son, and for the estate to be divided into three parts, in such a way that the son who remained under the control of his father should have one; the grandson who was adopted instead of the son, another; and the emancipated son, along with his own son who took the place of the grandson, the third. And even if the son should die and another of the grandsons be adopted in his stead, the estate must be divided into three parts, and it would be equitable for the grandson, who was adopted instead of the son, not to have less than he would have had if he had not been included among the grandsons, but a stranger had been adopted.

Julianus, Digest, Book XXIII. Therefore, if a son should be emancipated while his wife was pregnant, and receive prætorian possession of an estate in opposition to the terms of the will, he will be obliged to pay a legacy bequeathed to the grandson.

Julianus, Digest, Book XXIII. On this account it frequently happens that heirs who have been appointed reject the estate, because they know that an emancipated son has either demanded, or is about to demand, possession contrary to the provisions of the will.

Julianus, Digest, Book XXIII. Salvius Aristo to Julianus, Greeting. A certain man had an emancipated son, and, having passed him over in his will, he appointed his father and a stranger his heirs, and gave his father a legacy in addition. The son demanded prætorian possession of the estate in opposition to the terms of the will. I ask, if both the heirs entered upon the estate, or if either of them did, or if neither of them should have done so, whether the legacy would be payable to the father, and if so, how much of it he would be entitled to? I answered that I have often remarked, that the Section of the Edict by which an emancipated son who has obtained prætorian possession of an estate contrary to the provisions of the will is ordered to pay legacies, bequeathed to children and parents, is somewhat defective; for if three-fourths of an estate should be bequeathed to anyone, he to whom it was left would be entitled to more than the emancipated son. This, therefore, should be regulated by a decree in such a way that the emancipated son may have his share of the estate, and that the appointed heir will not receive more than he does; and the amount of the legacies should be regulated so that no more will be paid to anyone on this account than will remain in the hands of the emancipated son by virtue of prætorian possession of the estate.

Julianus, Digest, Book XXIII. The Prætor does not promise possession of the property of an estate in opposition to the terms of the will, under the condition that collation shall be made, but he shows what must be done after possession has been given. Otherwise, great advantage would be taken of an emancipated son, if he was not understood to have obtained prætorian possession of the estate, unless he had given security to make collation; for if, in the meantime, he himself should die, he would leave nothing to his heir. Moreover, if his brother should die, he will not be permitted to obtain prætorian possession of the estate. What should be done under such circumstances? It must then be held that he obtained legal possession of the estate, even before he gave security; but if he should not give security, the result will be that the entire estate will go to the son under paternal control. 1An emancipated son entered into a controversy with a minor under the age of puberty, who declared that he was his brother, and was under the control of his father. I ask whether the emancipated son should make collation of his property with him. Paulus remarks on this point: “I think that collation should be made, after a bond has been required that, if the minor loses the case, he will transfer the estate as well as the property of which collation was made.” 2Julianus: Whenever prætorian possession is given contrary to the provisions of the will, the emancipated sons should make collation of their property only with those who remain under the control of their father. The question arises how this can be done. For, if the property left by the father, as well as that belonging to the emancipated sons, is placed in one mass, and full shares of the same are taken, the result will be that the emancipated sons will profit by the collation made by themselves. Therefore, let us see whether it will not be more convenient for the emancipated sons to receive a fourth of their father’s estate, and a third of their own property. What I mean will become more plain by an example. Let us suppose that a father left four hundred aurei, and two sons under his control, and two have been emancipated. Of these one will have a hundred and the other sixty aurei out of his estate; the one who will be entitled to a hundred will obtain in all a hundred and thirty-three and a third; and he who contributed sixty will obtain a hundred and twenty, so that the result will be that those only who remained under the control of their father will obtain the benefit of the collation. 3Emancipated sons are ordered to place their property in collation with those who are under the control of their father. 4Wherefore, as he who is under the control of his father receives the dowry of his wife as a preferred legacy, so, also, can an emancipated son retain that of his wife as a preferred legacy. 5Where an emancipated son, who was passed over in a will, gives security with reference to the collation of his property, while he is deliberating whether he will demand prætorian possession of the estate or not, and he does not do so, and his brother brings suit against him on the stipulation, he will be secure under the will. If, however, he has deposited money by way of collation, he can recover it by an action; for, after he has declined to apply for prætorian possession, there will be no reason for the money to remain in the hands of the heir. 6A man who had two sons under his control, and also a grandson who was the son of one of them, emancipated the one by whom he had the grandson; and, after having been emancipated, the son had another son whom his grandfather adopted in his stead; and then the grandfather died, either intestate, or after making a will in which his emancipated son was passed over. The question arose, what would the rule be with reference to prætorian possession, and what ought to be done with respect to collation? The answer was that, so far as the property was concerned, three parts should be made of it, one of which would belong to the son who remained under paternal control, the second to the grandson who was adopted instead of the son, and the third to the emancipated son and the grandson who remained under paternal control; so that the father would be liable to collation only with the one who had obtained prætorian possession of the estate.

Julianus, Digest, Book XXIII. When the tablets of the will were sealed in several places, and some of the seals are broken but seven still remain, this will be sufficient to enable prætorian possession of the estate to be granted; just as where the seals of seven witnesses appear, although they may not include the seals of all who sealed the will.

Julianus, Digest, Book XXIII. That is to say, double damages by way of penalty, and simple damages in the personal action.