Marcellus, Digest, Book IX. Titius was appointed heir to half of an estate, and, through mistake, demanded possession of only one-fourth of it. I ask whether such a demand is not void, or whether all his rights are saved just as if the fourth of the estate had not been mentioned by him. The answer was, that the better opinion is that the demand is of no force or effect, just as if in the case where a party has been appointed heir to half of an estate, he erroneously only accepts a quarter of the same.

Marcellus, Digest, Book IX. Aristo denies that a codicil is valid where it is made by a person who was ignorant as to whether or not he was the head of the family. Ulpianus states in a note, “Unless he had served in the army, for then his will will be valid”.

Marcellus, Digest, Book IX. A freedman appointed his patron heir to his entire estate, which amounted to two hundred aurei, and then bequeathed a hundred and twenty to his son, and the balance to a stranger. The diminution of the legacy which was paid to the stranger will benefit the son in acquiring the entire legacy which was bequeathed to him. 1Where, for some reason or other, legacies are not required to be paid, they are included in the fourth part which the heir is entitled to retain under the Falcidian Law.

Marcellus, Digest, Book IX. A certain man who had emancipated his son, and retained his grandson under his control, disinherited his son, appointed his grandson his heir to a certain part of his estate, and passed over his other emancipated son in his will. It can be maintained that the grandson had a right to demand prætorian possession of the estate contrary to the provisions of the will; for prætorian possession is distributed in proportion to the share which each one would have obtained in case of intestacy, if the father had not been a proper heir. 1A testator, whose son had been adopted, appointed as his heir his grandson, whom his son had subsequently begotten, and passed over the emancipated son. Will the said grandson be entitled to prætorian possession of the estate under the Edict? He ought, nevertheless, to be protected, just as ascendants and descendants are to whom legacies must be paid by those who have obtained prætorian possession in opposition to the terms of the will. 2If the testator had retained under his control one or more grandsons by his said son, there is no doubt whatever that he or they should be protected to the same extent, as would have been the case if the grandson by his son, or the mother of the deceased, had been appointed heirs, for he can be compared to them.

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.

Marcellus, Digest, Book IX. The Prætor makes no provision in the Edict with reference to a father who has emancipated his son, and imposed upon the latter certain conditions in consideration of granting him freedom; and therefore the father can enter into no valid stipulation as to any services to be rendered by his son.

Marcellus, Digest, Book IX. Where a freedman devised to his patron a tract of land which he himself had purchased from him but which belonged to another, and the patron asserted that the legacy belonged to him, he cannot obtain prætorian possession of the estate contrary to the provisions of the will, even though the devise was of no benefit to him; because the freedman bequeathed to him property belonging to someone else, as well as for the reason that the patron himself had sold the land to his freedman.

Marcellus, Digest, Book IX. Where prætorian possession of an estate is granted to a son under paternal control, the days on which he is unable to notify his father, so that the latter may either direct him to accept possession, or ratify the possession which has already taken place, will not run against him. Suppose that, on the first day when he knew that he was entitled to prætorian possession of the estate he had accepted it, and could not notify his father in order that he might approve of what he had done, the hundred days will not run against him. They will, however, begin to run from the date when his father could have been informed, but, after the hundred days have elapsed, the ratification will be void. 1It may be asked if, when a son was able to demand prætorian possession of an estate, his father was absent so that he could not notify him; or if he was insane, and the son should neglect to demand possession, whether he could do so afterwards. But how can it prejudice his rights, if the possession of the estate was not demanded, when, if this had been done, it could not have been obtained unless the father had ratified the act? 2If a slave belonging to another is appointed heir, and then is sold by his master, the question arises whether the days prescribed for demanding prætorian possession must be considered to run against the new master. It is settled that the time to which the former master was entitled will run against him.