Tryphoninus, Disputations, Book XVIII. Where, however, the legacies granted by the will, as well as those granted by the codicil, taken together, amount to more than three-fourths of the estate, the question arises as to what extent should those to which the Falcidian Law applies be diminished. It would be most convenient, however, for it to be decided that the legacies which the soldier bequeathed by his will, having been fully paid out of the assets of the entire estate, the remainder should be divided between the heirs and those to whom legacies were given by the codicil, in the proportion of three-fourths to the former, and one-fourth to the latter. 1But what if the legacies bequeathed by the will should absorb the entire amount of the estate, would those to whom property was left by the codicil be entitled to anything, or would they not? Since, if the soldier had made these bequests while still in the service, all would be liable to contribution, and that portion which he bequeathed in excess of his estate must be deducted pro rata from all the legacies, the same must also be done in this instance. Then, the amount of the legacies bequeathed by the codicil having been ascertained from the sum which is found to be due (where the legacies belong to the same class) the heir can then deduct his fourth from those legacies alone which were bequeathed by the codicil. 2If, however, all the legacies had been included in the computation, and what remains in the hands of the heir should not be sufficient to make up the fourth of his share of said legacies, whatever is lacking must be taken from those legacies alone which were bequeathed by the codicil.

Tryphoninus, Disputations, Book XVIII. A soldier can appoint an heir as follows: “As long as Titius lives let him be my heir, and after his death, let Septicius be my heir”. If, however, he should say: “Let Titius be my heir for ten years”, without appointing any substitute, he will be intestate after the lapse of ten years; and, for the reason we have already stated, as a soldier can appoint an heir from a certain time, and up to a certain time, the result is that before the time arrives when the heir appointed can be admitted to the succession it will become intestate; and since a soldier is permitted to bequeath a portion of his property, so also, by the same privilege, he can remain intestate for a period of considerable extent. 1A woman who is suspected of being dissolute cannot take anything under the will of a soldier, as the Divine Hadrian stated in a Rescript. 2A soldier cannot appoint a guardian for a minor who is under the control of another. 3If a soldier should disinherit his son, or, knowing him to be his son, should pass him over in silence, the question arises whether he can charge a substitute with the payment of a legacy. I held that he could not do so, even though he left an ample legacy to the disinherited son. 4A soldier can substitute anyone for an emancipated son; the former, however, can only exercise his right with reference to property which came from the father to the son, and so far as any which he already possessed, or subsequently acquired, is concerned. For if, during the lifetime of his son, or while the grandfather was still living, he made the substitution, no one can say that the estate obtained from the grandfather will belong to the substitute. 5Where the estate of a soldier was not entered upon, the question arises whether the substitution which he made for a minor will be valid. The result is, that is must be considered valid, because a soldier is allowed to make a will for his son, even though he may not make one for himself.

Tryphoninus, Disputations, Book XVIII. Our Scævola is in doubt with reference to an estate left to a soldier by one of his relatives and comrades in arms, for the reason that if he had been known to him, and had been connected with him before he entered the army, he could have appointed him his heir, and he also might not have done so, if his military service with him had not increased his affection. It seems to us that if the will had been made before the parties served together in the army, the estate would not form part of the peculium castrense, but if it was made afterwards, the opposite opinion should prevail. 1If a slave, forming part of the castrense peculium, is appointed heir by anyone whomsoever, he should enter upon the estate by the order of his master, and it will become part of the property composing the castrense peculium. 2A son under paternal control, who was at the time in civil life, made a will disposing of his castrense pecidium, and while he was not aware that he was the proper heir of his father, died. It can not be held that he died testate, so far as the property of his castrense peculium was concerned, and intestate with reference to the estate of his father; although this is now stated in rescripts with reference to a soldier, because he can die partly testate in the beginning, and afterwards partly intestate; but this man did not enjoy this right, as he could not have made a will without observing all the legal formalities. Therefore, the appointed heir would be entitled to all the property of the castrense peculium, just as if a person who believed himself to be extremely poor should die after making a will, without being aware that he had been enriched by the acts of his slaves elsewhere. 3A father ordered a slave, who formed part of the castrense peculium of his son, to be free by his will. The son under paternal control having died, and his father, also, soon afterwards, the question arose whether the slave was entitled to his freedom, for the objection was made that the absolute ownership could not belong to two persons; and, on the other hand, Hadrian decided that a son could not manumit a slave forming part of such a peculium. If the slave had received his freedom by the wills of both the son and the father, and both of them had died, there could be no doubt that he would become free by the will of the son. But, in the first instance, it can be said in favor of the freedom granted by the father that the right of the latter did not cease until the son used that which had been granted him with reference to his castrense peculium; because if the son should die intestate, the father would be entitled to his peculium by his prior right, resembling that of postliminium, and the ownership of the property would appear to have had a retroactive effect. 4Still, it should not be said that, if the father, during the lifetime of his son and as his heir, should publicly manumit the slave, the latter would become free by such a manumission after the son had died intestate. 5But what if the son should make a will, and his estate should not be entered upon? It is not so easy to decide that the ownership of the property constituting the peculium would continue to belong to the father, after the death of the son, as the intermediate time, during which the testamentary heirs deliberate, offers the appearance of a succession. Otherwise, even if the estate of the son were entered upon by the testamentary heir, it might be said that the ownership passed to him from the father, which is absurd, if we hold that the property is in suspense in this case as well as in others; and we believe that by retroactive effect it either belonged or did not belong to the father. In accordance with this, if, while the heirs were deliberating, the time should arrive for the delivery of the legacy to the slave forming part of the peculium, under the will of someone, from which the father could obtain nothing, it is difficult to determine whether the legacy should belong to the father himself or not, as, otherwise, it would pass to the son’s heir. The decision of the question relating to the freedom of the slave is more easy to arrive at in the case in which the son is presumed to have died intestate. There is, therefore, no reason to state that he was entitled to freedom granted at the time when he did not belong to the father; still, we do not refuse a contrary opinion in either instance.