Paulus, On the Edict, Book XLI. Senators are always considered to have their residence at Rome; still, they are understood to have a residence in the place where they were born, for the reason that the rank of Senator is considered rather to give an additional domicile than to change the old one.

Paulus, On the Edict, Book XLI. Where a female slave is bequeathed, together with her children, the slave alone will be due if there are no children; and the children alone, if the slave is dead.

Paulus, On the Edict, Book XLI. But where the Prætor promises possession of a certain part of an estate to a patron, contrary to the provisions of the will, and promises possession of the remainder to the appointed heir, in accordance with the terms of the will, it is held that the right of accrual does not apply. Therefore, he promises possession of his share expressly to the patron, when the appointed heir does not claim his share under the will; as those entitled to the right of accrual must, at least once, demand possession of the estate. 1There are various advantages attaching to prætorian possession, for some kinds of possession are obtained contrary to the provisions of the will of the testator, and others in accordance with them; and sometimes the parties have a lawful right to it on the ground of intestacy, or they are not entitled to it because of having changed their civil status. For although, under the Civil Law, children are excluded from being direct heirs on account of their change of condition, still, the Prætor can, for equitable reasons, rescind this forfeiture of citizenship. He therefore grants possession of the property for the purpose of observing certain laws. 2Testamentary notes are not considered by the Edict as wills; for Pedius in the Twenty-fifth Book on the Edict says that notes are not letters.

Paulus, On the Edict, Book XLI. It should be noted that the possession of property contrary to the provisions of the will is promised to children whether there is an heir, or not. And this is the reason why we say that the children have a right to the possession of the estate in opposition to the will itself. The contrary rule applies to the case of a patron. 1Where anyone appoints an heir whom he has under his control, or disinherits him, and passes over a grandson by him, there is no ground for the application of the Prætorian Law, because the grandson will not be his legal heir. This rule is also applicable to more distant degrees of relationship. 2The Edict granting possession contrary to the provisions of a will does not apply to the wills of women because they have no heirs-at-law. 3Where an unborn child is passed over, another child, who has been appointed heir to his father, can be permitted to take possession of the property of the estate, even before the birth of the child first mentioned; because it would be unjust for an heir, who was not appointed, to claim possession of the estate, so long as such possession can be demanded contrary to the provisions of the will, and possession cannot be granted contrary to the provisions of the will, as long as the child who has been passed over is not yet born; and even if he should die before birth he will, nevertheless, transmit the right of possession of the estate to his heir. This is especially necessary where an emancipated child has been appointed heir, as, in the meantime, he cannot enter upon the estate.

Paulus, On the Edict, Book XL. Where an emancipated son has a son and then dies, and the grandfather dies afterwards, the grandson will be entitled to prætorian possession of the estate of his grandfather. 1Where the grandfather has emancipated his son and grandson, the grandson will not be entitled to his estate during the lifetime of the son, but after the death of his father he will be entitled to prætorian possession of the estate of his grandfather. 2If the grandson alone should be emancipated, and the grandfather, and then his father, should die, the grandson, who has been emancipated, will be entitled to the estate of his father, under the Prætorian Edict, because he would be the heir of his father if he had not been freed from the control of his grandfather. 3Where a son has been emancipated, and the grandson retained under the control of the grandfather, and both of them have been passed over, both will be entitled to possession of the estate under the Prætorian Law. 4If the son who has been emancipated belonged to an adoptive family, and has a son, the grandson will not be entitled to the possession of the estate of the natural grandfather under the Prætorian Edict. And even if the emancipated son, after having had sons born to him, should give himself in adoption, the same rule will apply. It is clear that if a child born in the family of the adoptive grandfather should be emancipated, he will be entitled to prætorian possession of the estate of his natural grandfather. Adoption does not prejudice the rights of a child, so long as he remains in a strange family. Moreover, if he is emancipated, he can obtain possession of the estate of his parents under the Prætorian Edict; provided that he is emancipated during their lifetime, and not after their death; for it is certain that he cannot be emancipated after their decease.

Paulus, On the Edict, Book XLI. Where a son given in adoption is appointed heir by his natural father, and another claims the benefit of the Edict contrary to the provisions of the will, the latter will be entitled to the preference. If, however, the condition should fail to be fulfilled, he will be excluded from possession. I think that this also applies to him who has been absolutely appointed an heir, but that was not done in conformity to law. 1Prætorian possession of an estate contrary to the provisions of the will is divided in the same manner as legal succession on the ground of intestacy. Hence grandsons by one son will have a single share between them.

Paulus, On the Edict, Book XLI. An action will be granted to the woman, even though the legacy is larger than the dowry.

Paulus, On the Edict, Book XLI. Where both the appointed heir and the substitute are living at the time of the testator’s death, we hold that the legacies with which the appointed heir was charged should be paid, even though no one may enter upon the estate.

Paulus, On the Edict, Book XLI. Where a son who is under paternal control is passed over, he will not be obliged to pay the legacies, even though he should demand possession of the estate in opposition to the terms of the will; because he will obtain the estate on the ground of intestacy, and not through having claimed prætorian possession. An exception based on fraud will not prejudice his rights; and it would be absurd for him to be compelled to pay the legacies because he demanded prætorian possession; as, without this, he would be entitled to the whole estate as heir at law. Whence, if there are two heirs who have been passed over, namely, one who has been emancipated, and the other who was still under paternal control, some authorities hold that the emancipated heir is not obliged to pay the legacies, because by the act of his brother he obtained half of the estate, when if he had not made the demand he would have been entitled to all of if. What, then, should be done when the proper heir is passed over? The rule which has just been mentioned will apply. Where, however, an heir is appointed and has the will of his father, he should be liable to the legatees, even if he fails to demand prætorian possession of the estate. 1But if one of the sons who was emancipated is appointed heir, and the other is passed over, and both of them obtain prætorian possession of the estate in opposition to the terms of the will, the one who was appointed heir, as well as the one who was passed over, must pay the legacies. If, however, the appointed heir is the only one who obtained prætorian possession contrary to the provisions of the will, he must pay the legacies to all the legatees, just as if he had accepted the estate. But if he should accept the estate, and the one who was passed over should obtain prætorian possession of the same, the latter must pay the legacies only to those persons who are privileged. A question arises with reference to the appointed heir, and many authorities hold that he should pay the legacies to the privileged persons. I think this opinion to be correct, since the Prætor protects him, for the reason that he is one of the children who can demand possession of the estate contrary to the provisions of the will. 2He must also be protected with reference to half of the estate, if he was appointed heir to a larger share than that amount, or was appointed heir to exactly one-half. Where he was appointed heir to less than half, we hold that he should be protected for no larger amount than that to which he was appointed; for how could he be entitled to more, since he did not obtain prætorian possession of the estate, and was not appointed heir to a greater portion? 3No legacy shall be paid to a woman who did not bring any dowry to her husband, even though it is bequeathed under the pretext of the return of her dowry. 4Where a foreign heir is appointed under the condition that a legacy shall be bequeathed to a privileged person, if he should pay ten aurei to the heir, an action will be granted him to recover his legacy, if he should pay it to anyone who has obtained possession of the estate contrary to the provisions of the will, but not if he should pay it to the appointed heir; for it is absurd that he should enjoy the benefit of the estate, and that the other should sustain the burden of paying the legacy. If, however, he should be ordered to pay it to Titius, he must not pay it to him, but to his son.

Ulpianus, On the Edict, Book XLI. When we say that a grandson, born after the death of his grandfather, can obtain prætorian possession of the estate of the latter, in the name of an emancipated son, it will be necessary to hold that his property will be subject to collation; although it cannot be said that he who had not yet been born had the property at the time of his grandfather’s death. Therefore, he must place the property in the mass of the estate, whether he received all of it from his father, or merely a legacy. 1The property of a son is understood to mean what he has left after deducting his debts. If, however, he owes a sum of money under a condition, it should not immediately be deducted, but it still ought to be placed in the mass of the estate. On the other hand, a son who is under the control of his father should give him security that, if the condition is fulfilled, he will protect him with reference to that portion of which he has made collation. 2Where property has been lost after the death of the father without the emancipated son being to blame, the question arises, who shall suffer the loss? Many authorities hold that property which has been lost without fraud or negligence should not be subjected to the burden of collation; and this is understood from the words with which the Prætor orders the property to be subjected to collation, in accordance with the judgment of a reliable citizen; for a reliable citizen would not decide that property is liable to collation which a person no longer has, and which he did not lose either through fraud or negligence. 3Property which, by virtue of an agreement, is due under a condition, should be placed in the mass of the estate by the emancipated son. The rule is different with reference to a conditional legacy; for, even if he should be under the control of his father, and the condition should be complied with after the death of the latter, he himself will be entitled to an action. 4If the emancipated son brings suit against anyone for injury committed, he need not make it the subject of collation; for a proceeding of this kind is brought rather for the gratification of revenge than for the recovery of money. If, however, he has an action growing out of theft, he should make collation of the same. 5Where there are three emancipated sons, and also two who are under the control of their father, Gaius Cassius, in the Seventh Book of the Civil Law, says that the emancipated sons should make collation of a third of their private property; so that, although they do not contribute to one another, they may be regarded as a single individual. They should not consider themselves ill treated if they contribute more, and receive less; because it was in their power not to apply for prætorian possession of the estate. Julianus also assents to the Opinion of Cassius. 6If an emancipated grandson, born to an emancipated son, after the death of both his father and his grandfather, should obtain prætorian possession of the estates of both, each having left a proper heir, the collation to be made can be explained as follows: for example, if he has property worth a hundred aurei, he should contribute fifty to his uncle, and fifty to his brother, for this ratio applies whether we take into consideration the persons themselves, or the shares of the estate to which they are entitled. 7Where there are two emancipated grandsons, the issue of a deceased son, who demand prætorian possession of the estate of their grandfather, the question arises whether they should contribute half, or a quarter, of their property to their uncle, by way of collation. The better opinion is that each should contribute half of his property, for if, during the lifetime of their grandfather, and while they were under his control, they had received, for instance, two hundred aurei, the son would be entitled to a hundred, and the two brothers to two hundred out of the estate of the grandfather. 8Where two emancipated sons demand prætorian possession of an estate, and one of them makes collation, and the other does not, the share of the latter will only benefit a son who is under paternal control, and not the one who has been emancipated, as it is on account of the one who is under paternal control that an action is denied to the other. 9Where an emancipated son cannot furnish security, he must not immediately be deprived of prætorian possession, but he may retain it until he can find sureties, in such a way, however, that an action can be granted to those who are under paternal control for the recovery of any property which is liable to be damaged by delay; and they must give security to place it in the mass of the estate, if they also are secured against loss.

The Same, On the Edict, Book XLI. Where anyone leaves a wife who is pregnant, and she obtains prætorian possession in the name of her unborn child, collation is suspended for a time; for before the child was born it could not be said to have been under the control of the deceased; but after it is born, collation must be made.

Paulus, On the Edict, Book XLI. In this section of the Edict the Prætor makes no provision with reference to legacies which the grandson shall pay to privileged persons. What has previously been said on this point is applicable here, for it is absurd that the father of the grandson should be obliged to pay such legacies, and that the grandson should have more, where, under the same circumstances, he is called to the same share under the Prætorian Law.

Paulus, On the Edict, Book XLI. If she should have a child that has been excluded from the estate, she must withdraw.

Paulus, On the Edict, Book XLI. A lodging, also, must be rented for the woman, if the deceased did not have a house. 1The slaves of the woman likewise must be provided with subsistence—where they are necessary for her service—in accordance with her social rank.

Paulus, On the Edict, Book XLI. The question arises, can a decree be rendered with reference to the property of a mother? And, in fact, a decree cannot be rendered in this instance, under the Carbonian Edict; for a long delay should be granted which will defer the decision until the age of puberty. 1Julianus says it is clear that if a controversy arises with reference to the estates of the father and mother, at the same time, or even with reference to that of a brother, the decision of the controversy must be postponed until the time of puberty. 2There will be ground for the application of this Edict, even if the children should obtain prætorian possession ab intestato; even when they demand it under the last Sections of the Edict, where heirs at law are called to the succession as they are proper heirs, or under that Section by which possession is granted to cognates. 3This Edict also applies where a controversy exists both with reference to the status of the minor, and his right to the estate; for if only his status is involved, as, for instance, where he is said to be a slave, and there is no dispute as to the estate, under such circumstances the question of his freedom should be immediately determined. 4If he who raises a controversy concerning the minor is placed in possession with him at the same time, he should not be supported out of the property of the deceased, nor can he take anything from the estate, for this possession is only given him in lieu of security. 5Not only should support be furnished the minor, but also money for his education, and all other necessary expenses should be paid in accordance with the amount of the estate. 6The question arises whether he who has been placed in possession under the Carbonian Edict can, after he arrives at puberty, take the part of plaintiff in court. It has been established that he can take the part of defendant, especially if he gives security. Where he does not give security, and is not prepared to do so, suit can be brought against him as the possessor of the estate. If he does not then furnish security, possession will be transferred to his adversary, provided that he banishes it; just as if the estate had been, from that moment, claimed by him for the first time.

Paulus, On the Edict, Book XLI. Just as security is given to an emancipated son with reference to the estate of his father, so it must also be given to a minor with reference to the property which he himself places in collation.

Paulus, On the Edict, Book XLI. It is true that every posthumous child who was unborn at the time of the death of the testator can demand prætorian possession of the estate after his birth.

Paulus, On the Edict, Book XLI. Popular actions do not pass to him to whom an estate has been restored under the Trebellian Decree of the Senate. 1The person entitled to bring these actions is not considered to be pecuniarily benefited on this account.