The Same, Disputations, Book XIX. A testator disinherited his son, who was under his control, and passed over another whom he had emancipated. The question arose under what circumstances the emancipated son would be entitled to prætorian possession of the estate. I answered that if the foreign heirs who were appointed should accept the estate, the son who remained under the control of his father would be excluded. If, however, the said heirs should reject it, which they could easily do, as they could obtain nothing from it on account of him who was entitled to prætorian possession contrary to the provisions of the will, and because the son who had remained under the control of his father, having become his own master, would be the heir-at-law of his father; still, the emancipated son, having demanded prætorian possession in opposition to the terms of the will, would alone be entitled to it. But, as disinheritance is of no force or effect, where an estate is not accepted under the will, Julianus very properly holds that this should not prevent the disinherited son from acquiring prætorian possession of the estate of his father contrary to the provisions of the will. In order to prevent a will, void in every other respect, from seeming to be effective solely so far as the reproach of disinheritance is concerned, the matter is referred to the death of the intestate, so that the Prætor may protect the emancipated son against the direct and sole heir-at-law, and secure for him half of the inheritance. Therefore the benefit to be obtained from the appointed foreign heir is purchaseable, and as he can legally obtain nothing of the estate, by entering upon the same he can exclude the son remaining under parental control, and by law will transfer it in its entirety to the emancipated son, in opposition to the terms of the will. If, however, the appointed heir should reject the estate, he will render the disinherited heir, who now becomes the sole heir, entitled to his share of the same. For, just as the Prætor protects the emancipated heir when an estate is not entered upon, so the son who remained under his father’s control should not be absolutely excluded in case the estate should be accepted; but he will be permitted to claim it, as against the emancipated son, on the ground that the will is inofficious. 1Let us see, however, where both heirs obtain the estate of their father, whether the one who has been emancipated is subject to contribution to the other, as he is not obliged to do this by the terms of the Section of the Edict under which he obtains prætorian possession in opposition to the terms of the will, since it directs security for contribution to be furnished by the emancipated heir, to those to whom possession of the estate is given. For the heir who is under the control of his father is not called to the prætorian possession of the estate contrary to the provisions of the will, because he was expressly disinherited. Nor is contribution required by that Section of the Edict under which the emancipated son is permitted to obtain prætorian possession after his father has died intestate, for the reason that although his brother may be the heir-at-law; still, the emancipated son does not obtain prætorian possession of the estate on account of the above mentioned Section. I fear that the act of the appointed heir, who rejects the estate, will not be of any benefit to the son, except to enable him to obtain half of the estate of his father; but by it he will not acquire half of the property of the son who was emancipated. In a case of this kind the result will be that, if the heir who is under the control of his father is appointed to a smaller share than he would otherwise have been entitled to, and if his emancipated brother has obtained prætorian possession of the estate, although contribution is indicated by the words of the Edict, still by the decision of the Prætor this advantage will be denied him. There is, however, much more reason that he should not be benefited by contribution, because, having been disinherited by his father, he is not called to the prætorian possession of the estate in opposition to the terms of the will; and on account of the rejection of the estate by the appointed heir, he will not be entitled to anything, because the emancipated son, having obtained possession contrary to the provisions of the will from the Prætor, occupies the position of the proper heir. 2The said emancipated son will be compelled to pay out of his share any legacies bequeathed to children, and ascendants of the deceased, not all of them, but only half; because of what remains of the inheritance for the son under paternal control. There is, however, no cause for the legatees to bring suit against him, since he is rightfully the heir at law. 3But where he received prætorian possession of the estate in opposition to the terms of the will, even if the estate should not be accepted by the appointed heir, he must pay the legacies granted by that part of the will in opposition to which he obtained possession of the estate. Therefore, in this instance, the condition of the son who remains under paternal control will, in fact, be better than if he had not been disinherited.