The Same, On the Edict, Book XXXIX. Therefore the Proconsul has in his own province greater authority than anyone else except the Emperor.

Ulpianus, On the Edict, Book XXXIX. The Governor of a province has greater authority therein than anyone else except the Emperor.

The Same, On the Edict, Book XXXIX. It is an accepted rule which we make use of in law, that if anyone of higher, or of equal rank, submits himself to the jurisdiction of another, the latter can administer justice for and against him.

The Same, On the Edict, Book LIX. An action cannot proceed between two litigants unless where one of them is the claimant and the other the possessor of the property; for there must be someone to bear the burden of the plaintiff, and another who enjoys the advantage of possession.

The Same, On the Edict, Book XXXIX. Where a creditor discharges his debtor after he had agreed to provide someone who would promise to make payment in his stead, and he does not do so; it may be held that the party who was discharged is liable to a suit for the recovery of the money.

The Same, On the Edict, Book XXXIX. In order to obtain at the same time the legal number of witnesses, the father, the son, and any other persons who are under his control may be called. 1In order to establish the condition of the witnesses, we should consider the time when they attached their seals to the will, and not the time when the testator died. Therefore, if at the time they attached their seals they were competent to do so, the validity of the will can not be questioned if anything should afterwards happen to the witnesses. 2If I take a ring from the testator himself, and make use of it to seal his will, the latter will be valid, just as if I had sealed it with another ring. 3If the seals should be broken by the testator himself, the will will not be held to have been sealed. 4Where one of the witnesses did not sign his name, but, nevertheless, attached his seal, it is the same as if he had not been present; and if he signed it (as many do) without attaching his seal, we hold that the same rule applies. 5Can we only attach our seals by means of a ring, or if we do not use a ring can we do so with any other article, as men frequently do? The better opinion is that the seal can only be impressed by means of a ring, for it must have a form and be engraved with a device. 6There is no doubt that a will can be sealed at night. 7A will must be considered to have been sealed when the seals have been impressed upon the cloth in which it is wrapped.

Ad Dig. 37,1,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 42, Note 3.Ulpianus, On the Edict, Book XXXIX. Prætorian possession transfers both the benefits and inconveniences attached to an estate, as well as the ownership of the property belonging to the same; for all these things are associated with it.

Ad Dig. 37,1,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 42, Note 3.The Same, On the Edict, Book XXXIX. The term “property” in this instance (as we generally accept the term), must be understood to mean everything belonging to an estate to which succession is granted under the rights of the deceased, all benefits and disadvantages connected with it being included. For the estate is either solvent or insolvent, and is liable to loss or gain, or the assets consist of things which are corporeal, or of rights of action; and, under these circumstances, they are very properly designated property. 1The possession of an estate, or prætorian possession (as Labeo says), should not be understood to be the actual possession of the property, for it is rather legal than real. Hence, where nothing corporeal belongs to the estate, Labeo holds that, nevertheless, prætorian possession may be acquired. 2Therefore, we define prætorian possession to be the right of recovering or retaining an estate, or the effects which belonged to someone at the time of his death. 3Prætorian possession of property is not acquired by anyone against his will. 4Prætorian possession can be acquired by municipalities, associations, decurite, and corporate bodies. Hence an agent of any of the said corporations can obtain it, or anyone else can do so in their name; and even if no one should demand or receive such possession in the name of a municipality, it still can acquire it under the Edict of the Prætor. 5Prætorian possession of property can be granted to the head of a household, as well as to a son under paternal control, provided the latter has the right of disposing of his peculium castrense or quasi castrense, by will. 6There is no doubt that prætorian possession of the estate of a person who has died in the hands of the enemy can be acquired, even though he may have died in a condition of slavery. 7Any person can obtain prætorian possession either himself or through the agency of another. If, however, someone should demand possession for me, when I have not directed this to be done, his act will not be legal until I have ratified it. Moreover, there is no doubt that if I should die before ratifying his act, I will not be entitled to the possession of the property, because I have not consented to what he has done, and my heir cannot do so, as the right to claim prætorian possession does not pass to him. 8Where prætorian possession is granted after proper cause has been shown, it shall not be granted anywhere else than in court, because the Prætor cannot render such a decree without ceremony; nor, after an investigation, can prætorian possession be granted anywhere else than in his tribunal. 9It should be remembered that the right of accrual applies to the prætorian possession of property. Hence, if there are several persons entitled to such possession, and one of them obtains it, the others are not included:

Ulpianus, On the Edict, Book XXXIX. For the shares to which the others would have been entitled, if they had claimed possession of the estate, will accrue to the one who did obtain possession.

Ulpianus, On the Edict, Book XXXIX. A person who is dumb, deaf, or blind, can obtain prætorian possession of property, if he understands what is taking place.

Ulpianus, On the Edict, Book XXXIX. We must understand the term “children” when used with reference to the prætorian possession of an estate contrary to the provisions of the will, to mean either natural or adopted children, where they have either been appointed heirs, nor disinherited. 1Moreover, children are called to the prætorian possession of an estate contrary to the provisions of the will by the same right, and in the same order, in which they are called to the succession under the Civil Law. 2This general principle is also held to apply to posthumous children. 3Pomponius thinks that where children return from captivity by the enemy, and enjoy the right of postliminium, they can be admitted to prætorian possession contrary to the provisions of the will. 4Where one of three sons has been taken prisoner by the enemy, the two remaining ones who are at home will be entitled to prætorian possession of two-thirds of the estate. 5The same rule applies to a posthumous child, for as long as his birth is expected, he will be entitled to a share of the estate. 6The Prætor gives possession of property to children who are their own masters. For if they have been emancipated, or released from parental control in some other manner, they are allowed to acquire possession of the estate; but this is not the case with an adopted child, since, in order for it to be admitted to prætorian possession, it must be included in the number of children. 7A certain man had a son, and a grandson by the latter. He emancipated his son, and adopted him instead of his grandson, and then emancipated him a second time. The question arose whether he prejudiced the rights of the grandson. The better opinion seems to me to be that the grandson was not excluded, as his father either remained adopted as a grandson, or was emancipated. For I think that the father, having once been emancipated, the grandson, together with his father, should, under the terms of the Edict, be entitled to possession of the estate. 8A man had a son, and by him a grandson; the son was emancipated, or, having remained under his father’s control, was banished. The question arose whether this would prejudice the rights of the grandson. The better opinion is that, in either instance, the grandson should be permitted to have prætorian possession of the estate, for persons who are banished are considered to be dead. 9Where a father and his son were both banished, and both regained their rights, we say that the son ought to be admitted to prætorian possession of the estate. Where, however, the son was sentenced to the mines, or to any other punishment equivalent to servitude, and was afterwards restored to his rights, he will, nevertheless, be admitted to prætorian possession of the estate; but this will not be the case if he should not be restored to his former condition.

Ulpianus, On the Edict, Book XXXIX. Not only are emancipated children themselves admitted to the prætorian possession of property, but also their children as well. 1Where a man has two grandsons, and after emancipating one of them adopts him instead of his son, let us see whether he alone will be entitled to prætorian possession as a son. This is based upon the presumption that the deceased adopted the said grandson as his son, and as the father of the other grandson whom he retained under his control. In this case it is better to hold that he alone will be entitled to possession of the estate under the Prætorian Law. 2But if the said grandson should be emancipated, it is preferable to conclude that he will not be entitled to possession in the capacity of a son. For this so called son is not included in the number of children, as his right acquired by adoption has been lost by emancipation. 3If I have a son, and by him a grandson, and adopt the grandson instead of the son, both will be entitled to prætorian possession; but it is clear that if the grandson should be emancipated he will not be permitted to have possession because his father takes precedence of him. 4If anyone, after having been emancipated, should give his son to his father to be adopted as his own son, it is perfectly just that all rights to which any other arrogated child is entitled should be conceded to him, and therefore he ought to be joined with his father, when prætorian possession of an estate is granted. If the said grandson should be emancipated after his adoption, it will be perfectly just for him to be excluded, for then he resumes his proper place, and should not be joined with his father. 5If an emancipated son marries a woman without the consent of his father, and a child is born to him, and his father having died, the said grandson applies to be placed in possession of the estate of his grandfather, his application should be granted. For, by setting aside the emancipation by the Prætor, a legitimate son does not lose his rights as such; for a rescission of the emancipation is made in order that the children may, the more readily, obtain prætorian possession of the estate, and not be excluded from it. And even if the son should marry a woman of such bad character that marriage to her would be dishonorable to himself, as well as to his father, still, we say that a child born of the said woman should be permitted to obtain possession of the property of the estate, as his grandfather could have availed himself of his right to disinherit him. In the decision of a case where the will has been attacked as inofficious, the magistrate who has jurisdiction, in rendering judgment must weigh the merits of the grandson as well as the offences of the father. 6Where an emancipated son, who was passed over, gives himself to be arrogated before an application for prætorian possession of the estate is made, he loses his right to demand possession contrary to the provisions of the will. 7Where anyone gives his grandson, whom he has under his control, in adoption to his emancipated son, the father of said grandson will be permitted to take possession of the estate of the grandfather, contrary to the provisions of the will, if his father is already dead, because he belongs to his family; and he himself can be permitted to take possession of the estate contrary to the provisions of the will. 8The same rule applies where an emancipated son gives his own son, who was born after his emancipation, to his father, in adoption, and then dies; for, in this instance, the said grandson should be permitted to acquire possession of the estate of his father, just as if he did not belong to another family. 9Where a father enters a family by adoption, and his son does not, can the son acquire possession of the estate of his father who died while a member of the adoptive family? I think that the more equitable opinion is, that the son, although he may not belong to the same family as his father, should still be permitted to take possession of the property of his estate under the Prætorian Law. 10Children who cannot legally be appointed heirs are not entitled to demand possession of an estate contrary to the provisions of the will. The words, “Cannot be appointed,” refer to the time of the death of their father. 11Where one of several children is appointed heir, he should not be permitted to take possession of the estate in opposition to the provisions of the will. For if he was entitled to possession under the will, what good would it do to give him possession in opposition to it? It is clear that, if another child should have recourse to the Edict, he would be entitled to possession contrary to the provisions of the will. 12Where, however, anyone is appointed heir under a condition, he cannot obtain possession of the estate in opposition to the will; and this was stated by Julianus in the Twenty-third Book of the Digest. But what if the condition should not be complied with? It is true that then he could obtain possession contrary to the provisions of the will. 13If an emancipated son should be appointed heir under a condition which it is not in his power to comply with, he can receive prætorian possession of the estate contrary to the provisions of the will; and he ought to receive it, because he was appointed heir, but he cannot obtain it contrary to the provisions of the will. If, however, the condition should not be fulfilled, he must be protected by the Prætor to the same extent as if he had obtained possession contrary to the provisions of the will. 14Even if a grandson is appointed heir under a condition of this kind, the same rule will apply. 15Where one of several children is not appointed heir, but his slave is appointed, and he orders him to accept the estate, possession contrary to the provisions of the will should be denied him. 16The same rule applies if the child should prefer to take what was left to him, or to his slave; for, in this instance, the possession of the estate contrary to the provisions of the will should be refused him.

Ulpianus, On the Edict, Book XXXIX. By a will we should understand any kind of material upon which it is written; therefore, whether it is written upon tablets of wood, or upon those of any other kind of material, or upon papyrus, or parchment, or upon the skin of any animal whatsoever, it is also properly designated a will. 1The Prætor does not, under this Section of the Edict, confirm all wills, but only the last ones; that is to say, those which were most recently made, and after which no others have been drawn up. A last will is not one which was executed at the very time of death, but one after which no other has been executed, even though it is old. 2It is sufficient for there to be a will, although it may not be produced, if it is certain that it does exist. Therefore, if it is in possession of a thief, or in the hands of one with whom it has been deposited for safe-keeping, there is no doubt that prætorian possession of the estate should be granted; for it is not necessary to open the will in order that prætorian possession may be obtained in accordance with its provisions. 3Again, it is necessary for the will to have been in existence at the time of the death of the testator, even if it may have ceased to exist afterwards, hence, where it has subsequently been destroyed prætorian possession can be demanded. 4Nevertheless, we require that the heir should know that the will existed, and be certain that the possession of the estate was given to him by its provisions. 5Where anyone makes two copies of his will, and one of them remains, and the other is destroyed, the will is considered to be in existence, and prætorian possession of the estate can be demanded. 6Even if the testator made two wills, and sealed them at the same time, and appointed different heirs by each one, and both are in existence; possession of the estate can be obtained under both, because they are considered as one document and the last will of the testator. 7If, however, a testator should execute a will, and also a copy of the same, and if the one which he intended to be his will is in existence, prætorian possession of the estate can be demanded; but Pomponius says that if only the copy is in existence, possession of the estate cannot be claimed. 8For possession to be given of an estate of anyone, the Prætor requires that he should have the right of testation, not only when he made the will, but also at the time of his death; hence, if a minor under the age of puberty, or an insane person, or anyone else of those who have not testamentary capacity should make a will and afterwards became competent to do so, and die, prætorian possession of his estate cannot be demanded. If, however, a son under paternal control, thinking that he was the head of a household when he was not, should make a will, and afterwards be found to be his own master at the time of his death, possession of his estate in accordance with the provisions of the will cannot be claimed under the terms of the Prætorian Edict. But if a son under paternal control, who was a veteran, should make a will disposing of his castrense peculium, and afterwards be emancipated, or become the head of a family and then die, prætorian possession of his estate can be demanded. If anyone should have the power to make a will at both the times above mentioned, but should not have that power in the interval, prætorian possession of his estate can be claimed in accordance with the provisions of his will. 9Moreover, if anyone should make a will, and afterwards be deprived of testamentary capacity either through becoming insane, or for the reason that he was forbidden to manage his property, possession of his estate can be demanded under the Edict, because his will is valid in law. Generally speaking, this may be said of all persons of this kind who have lost the power to make a will at the time of their death; but their wills executed before that time are valid. 10Where the cord which binds the tablets of the will together is cut, even though this was done against the wish of the testator, prætorian possession of the estate can be demanded. If, however, the testator himself should cut it, the will is not considered to have been sealed, and therefore possession of the estate cannot be claimed. 11If the tablets on which the will is written should be gnawed by mice, or the cord be broken in some other way, either through being decayed by age, or by the dampness of the place where it was deposited, or by a fall, the will is considered to have been sealed; especially if you suppose that it is fastened with only one cord. If a cord is wound three or four times around the tablets, it must be held that they are sealed, even though it may be cut or gnawed in one place.

Ulpianus, On the Edict, Book XXXIX. If a father should emancipate his son, retaining his grandson under his control, and his son should afterwards die, both the equity of the case and the terms of the Edict by which it is provided that prætorian possession of the estate of a father shall be granted to his children, on the ground of intestacy, will have the effect of causing an account to be taken, and the possession of the estate of the intestate father to be delivered; so that the grandfather who will obtain the benefit of prætorian possession of the estate through his grandson will be compelled to make contribution to a sister who becomes her father’s necessary heir; unless the grandfather should not wish to obtain any benefit from the property, and is ready to release his grandson from his control in order that, after his emancipation, he may obtain all the advantages of prætorian possession. Therefore, the sister, who becomes the heir of her father, cannot justly complain of being in this way excluded from the benefit of contribution; since, if her grandfather sliould die intestate, she will be entitled to share equally with her brother in his estate.

Ulpianus, On the Edict, Book XXXIX. Slaves forming part of an estate cannot be put to the torture to obtain evidence against their masters, as long as it is uncertain to whom the property belongs.

The Same, On the Edict, Book XXXIX. He can not only establish his domicile where his father has his, but anywhere else.