The Same, Questions, Book XIII. A prætorian action cannot be granted to the purchaser, since it would be most unjust to deprive an owner of anything where this was not done by use; nor can that be understood to be lost which was not taken away by another.

Ad Dig. 28,7,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 627, Note 6.Papinianus, Questions, Book XIII. If a son should be appointed an heir under a condition, and grandchildren by him are substituted; as it is not sufficient for a son to be appointed an heir under any kind of a condition whatsoever, the will is only held to be valid where the fulfillment of the condition is in the power of the son. Let us therefore consider whether it makes any difference what condition was imposed, whether it was one that could not be carried out if the son should die, as, for instance, “If my son should go to Alexandria, let him be my heir”, and he dies at Rome; or if it is one which can be fulfilled at the last moment of his life, for example, “If he should pay ten aurei to Titius, let my son be my heir”, for this condition can be performed by another party in the name of the son. The first kind of a condition above mentioned admits the grandsons to the succession during the lifetime of the father, who, if he should have no substitute, becomes the lawful heir of his father when he dies. This is established by what is stated by Servius, for he relates that a certain person had been appointed an heir under the condition, “If he should ascend to the Capitol, and even if he should not do so, a legacy shall be given to him”, and the heir died before he ascended to the Capitol. With reference to this, Servius gave the opinion that the condition failed through the death of the heir, and therefore at the time of his death he began to be entitled to the legacy. The other kind of a condition, however, does not admit grandsons to the succession during the lifetime of the son, who, if they should not be substituted, would be the heirs of their intestate grandfather; for the son would not be held to have stood in their way, as after the death of the father, his will becomes of no effect; just as if the son having been disinherited, the grandsons had been appointed heirs at the time that the son died.

Papinianus, Questions, Book XIII. Where a near relative of the deceased alleges that his will was forged, and proves it after a long period of time, although the time for demanding possession is held to have elapsed, and the plaintiff, being certain of proving his allegations, may have claimed it, still, for the reason that he asserted his claim in order to preserve his rights, it is not unreasonable that he should be considered to have accepted the succession.

Papinianus, Questions, Book XIII. If the portion of an estate to which a privileged person is entitled through the benefit of the law is rejected, the son who has received prætorian possession will profit by that share, but he shall not pay the legacies to anyone else than to privileged persons.

Papinianus, Questions, Book XIII. There is no ground for the application of the Carbonian Edict, where the son, whose civil condition is contested, cannot become the heir without the intervention of the Prætor; for example, if he has been appointed. The same rule applies where it is certain that he still cannot be the heir, even though he may be the son; as, for instance, if Titius was appointed heir, and a posthumous child or a disinherited minor should be denied to be the son of the testator. Nor does it make any difference what interest the minor may have in being proved to be the son, with reference to other matters, for example, in order to obtain the property of his brother by another mother; or to acquire rights over freedmen and burial places; for it is established that these cases do not come under the Carbonian Edict.

Papinianus, Questions, Book XIII. “Let Titius be the heir of the one of my children who shall be the last to die before reaching the age of puberty.” If the two children should die in a very distant place, and the substitute did not know which one of them died last, the opinion of Julianus must be adopted, which was that, on account of the uncertainty of the condition, possession of the estate of even one who died first could be demanded by the substitute. 1Where a son who was appointed heir returns from captivity after the death of his father, he can obtain prætorian possession of his estate, and the term of a year in which he can do so will be computed from the day of his return. 2Ad Dig. 37,11,11,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 563, Note 7.Titius, after having made his will, gave himself to be arrogated, and then, having become his own master, died. If the appointed heir should demand prætorian possession, he will be barred by an exception on the ground of fraud; because, by giving himself to be arrogated, the testator transferred all his property, together with himself, to the family and household of another. It is clear that if, having become his own master, he stated in a codicil, or in some other document that he wished to die without changing his will, the will which had become inoperative is understood to have been restored by this subsequent statement, in the same way as if he had executed another will and had torn it up, so as to leave the first one in force. Nor should anyone think that a will can be made by the mere expression of a wish; for, in this instance, no question whatever is raised with reference to the legality of the instrument, but only with reference to the force of the exception that, under these circumstances, may be filed against the plaintiff, which must depend upon the person of the adversary.

The Same, Questions, Book XIII. A son, who was his father’s heir, arrogated his disinherited brother and died, leaving the latter his heir. In this case the disinherited son will not have the right to demand possession of the estate of the freedman of his natural father. For although an adoption of this kind does not affect the rights of a son who is not disinherited, it will prejudice those of one that is; as the penalty imposed both by the Civil Law and the Prætorian Edict is not rendered inoperative by the act of adoption. Paulus says that anyone who obtains an estate by a different title than the one which he lost is not prejudiced by the latter, but is benefited by the one which he has acquired. Hence it has been settled by the Edict, that a patron, who is at the same time the son of a patroness, will not be excluded from, obtaining prætorian possession of the estate of a freedman, where he has committed some offence as patron. 1Papinianus: A freedman appointed Titius heir to his castrensian property, and another heir to his other property. Titius entered upon the estate. The better opinion seemed to us to be that the patron could not yet demand prætorian possession of the estate contrary to the provisions of the will. However, the following question arose, namely, if the person to whom the remainder of the estate had been left should refuse to accept it, would it accrue to Titius, just as if they had accepted two different shares of the same estate? It seems to me more equitable that the remainder of the estate should be considered to be without legal heirs. Therefore, Titius could not require the patron to contribute, as the former had lost nothing, nor had anything been taken from the remaining assets which had not yet been disposed of by the will. 2Where the minor son of a freedman, who is under the age of puberty and is alleged to be supposititious, obtains prætorian possession of the estate of his father, under the First Section of the Edict, the question arises whether the patron also can obtain prætorian possession. There is no doubt that those who are in the second degree cannot, under the Edict, be admitted to the succession, so long as there are others entitled to it under the First Section; for, as long as another possession has precedence, those that follow cannot be permitted to take place. There is no doubt that if a decision should be rendered against the child who is alleged to be supposititious, it is understood that possession will not be granted him; and the same rule will apply with reference to the patron, while the controversy is pending. It is clear that examination of the controversy should be deferred until the age of puberty, so far as the patron also is concerned. 3Where the will of a freedman is alleged to be forged by persons living in a province, and an appeal has been taken from the judgment, and, in the meantime, the daughter of the patron, whom the freedman appointed his heir, dies, the Divine Marcus decided that the share of the estate to which the daughter of the patron would have been entitled if she had lived should be preserved for her son.