Pomponius, On Quintus Mucius, Book II. If I should disinherit my son by name and afterwards appoint him my heir, he will be my heir.

Ad Dig. 28,3,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 2.Pomponius, On Quintus Mucius, Book II. When in the second will we appoint an heir who is living, whether this is done either absolutely or conditionally, and the condition can be fulfilled even though this may not take place, the first will is broken. It makes a great deal of difference, however, what the imposed condition was; for everyone that can be conceived has reference either to the past, the present, or the future. One is imposed with reference to the past, for instance: “If Titius has been consul”; and if this condition is true (that is to say if Titius has actually been consul), the heir will be appointed in such a way that the first testament will be broken, for he becomes the heir for this reason. If, however, Titius has not been consul, the former testament will not be broken. Where the condition imposed with reference to the appointment of an heir relates to the present time, as for instance: “If Titius is consul”; the result will be the same, so that, if he is consul, the party can become the heir, and the former testament will be broken. But if he is not consul, the party cannot become the heir, and the former testament will not be broken. If conditions are imposed with reference to a future time, and they are possible and can be fulfilled, even though they may not take place, they cause the former will to be broken. Where, however, they are impossible, as, for example, “Let Titius be my heir if he has touched the sky with his finger”, it is held that this condition is just as if it had not been prescribed, as it is impossible.

The Same, On Quintus Mucius, Book II. Where the following was inserted in a will: “Let Tithasus be my heir if he ascends to the Capitol; let Tithasus be my heir”; the second clause will have the greater effect, for it is more complete than the first one.

Pomponius, On Quintus Mucius, Book II. If a minor should be appointed an heir under some condition, he can comply with the condition, even without the authority of his guardian. The same rule applies where a legacy has been bequeathed to him under some condition, because when the condition has been fulfilled, he is in the same position as if the estate or the legacy had been left to him unconditionally.

Pomponius, On Quintus Mucius, Book II. It has recently been decided by the Emperor, that where a testator left property to anyone, but did not add the term “my,” and did not intend to leave the said property unless it was his, the legacy would be valid only where it was necessary to pay more attention to the wishes of the testator than to the word “my.” Wherefore this nice distinction arises, that whenever a certain article is bequeathed to be delivered immediately, the term “my” does not create the condition. If, however, property which is not expressly designated, as, for example, “My wines, my clothing,” the term “my” is held to be conditional, so that only that is left which belonged to the testator. Still, I do not think the above-mentioned opinion can be strongly maintained, but rather that, in this instance, any clothing or wine which the testator considered to be his, is bequeathed; and hence it was held that even wine which had become sour was included in the legacy, if the testator had always considered it to be wine. It is clear that where the testator used language relating to the time of his death, for instance, “the clothing which shall be mine,” I think that this undoubtedly should be understood as implying a condition. I also think that, where the testator says, “Stichus, who will be mine,” the sentence ought likewise to be considered as conditional; nor does it make any difference if he should say, “Who will be mine,” or “If he should be mine,” in both cases the bequest will be contingent. Labeo is of the opinion that the following clause, “Who shall be mine,” should only be considered by way of designation. We, however, make use of another rule.

Pomponius, On Quintus Mucius, Book II. Those are enemies who declare war against us, or against whom we publicly declare war; others are robbers or brigands.