The Same, On the Edict, Book XL. However, we should not go to the extent of holding that if suit is brought for ten thousand aurei, and two defenders should appear ready to defend for five thousand each, they shall be heard.

The Same, On the Edict, Book XL. Even though his intention is to put something better in its place, and this opinion is the true one.

Ulpianus, On the Edict, Book XL. The Prætor does not think that children who have been disgraced by disinheritance, and excluded from the succession, should be permitted to obtain prætorian possession, in opposition to the terms of the will, just as by the Civil Law, they do not prevent the execution of the will of their parents; for, under these circumstances, they have the right to attack the will as inofficious, if they desire to do so. 1It is not sufficient for an heir to be disinherited by this being stated in any part of the will, but he must be specifically mentioned as belonging to that degree against which the possession of an estate is claimed under the Prætorian Law. Hence, if the son should be disinherited in the first degree, and passed over in the second, and the heirs appointed in the first degree do not demand prætorian possession of the estate, the said son can obtain possession of the same in opposition to the terms of the will. 2Every disinheritance does not bar a child from obtaining possession of an estate contrary to the provisions of the will, but only where this is legally done. 3When the son who is disinherited is one of several heirs, Marcellus, in the Ninth Book of the Digest, says that he is not considered to be disinherited, and therefore he can claim possession under the Prætorian Law, in opposition to the terms of the will, against any of the other heirs. 4If a son is disinherited, and then appointed heir, and the degree in which he is appointed takes effect, I think the Edict will become operative with reference to the other son, and that he can demand prætorian possession of the estate in opposition to the terms of the will. 5Where a son is passed over in the first degree, and disinherited in the second, and the heirs appointed in the first degree die before the death of the testator, it must be said that the son who has been passed over will not be entitled to prætorian possession of the estate in opposition to the terms of the will; for the condition of the estate with reference to the second degree is such that it cannot be entered upon in the first degree, nor can prætorian possession of it be claimed. If, however, the appointed heir should die after the death of the testator, Marcellus holds that the right of prætorian possession of the estate, contrary to the provisions of the will, having once vested in the son, he will continue to be entitled to it. And even if the condition upon which the appointment of the heir depended should fail to be fulfilled, he also says that the son who was passed over in that degree can also claim prætorian possession contrary to the provisions of the will. He also says that the same rule will apply even if a posthumous child, who was appointed the heir, should not be born; for he holds that, in this instance, the son will be entitled to prætorian possession of the estate in opposition to the terms of the will. 6Where anyone writes his disinheritance with his own hand, let us consider whether he can obtain prætorian possession of the estate contrary to the provisions of the will. Marcellus, in the Ninth Book of the Digest, says that a disinheritance of this kind will prejudice his rights, because the Senate has not prescribed that, where anyone performs some act against himself, it shall be considered as not having been written. 7Where anyone, after having disinherited his emancipated son, arrogates him, Papinianus, in the Twelfth Book of Questions, says that natural rights will always prevail in a case of this kind, and therefore that such a disinheritance will prejudice the son. 8With reference to a stranger, however, he adopts the opinion of Marcellus that disinheritance will not prejudice his rights, if he should subsequently be arrogated by his father. 9Where a son has returned from captivity under the right of postliminium, it must be said that disinheritance previously made will injure him. 10If a natural father should disinherit his son while he belongs to an adoptive father, and afterwards his son is emancipated, the disinheritance will prejudice his rights. 11The Prætor does not wish that children who have been given in adoption should be excluded from the possession of an estate, provided they are the appointed heirs; and Labeo says that his decision is most just, for the children are not entirely strangers. Therefore, if they should be appointed heirs, they can obtain prætorian possession of the estate in opposition to the terms of the will; but they themselves, alone, cannot render the Edict operative, unless one of those who have been passed over can cause it to be applicable. If, however, this child should not be appointed heir, but another person, who can acquire the estate for him, is, there will be no reason why we should permit him to obtain possession contrary to the provisions of the will. 12Moreover, in order that these children should be permitted to obtain prætorian possession, they must be the direct descendants of the testator, for if I have given in adoption a son, whom I myself have adopted, and the Edict is rendered operative by my other children, prætorian possession of the estate contrary to the provisions of the will shall not be granted to the aforesaid child. 13Prætorian possession in opposition to the terms of the will is also granted to a child belonging to an adoptive family, if he is appointed heir in the degree against which possession of the estate can be demanded. 14It is not surprising that an emancipated son, who has been passed over, should be able to confer upon the appointed heirs greater rights than they would have been entitled to, if they had remained the sole heirs; for if a son, who was under the control of his father, is appointed heir to a fourth part of his estate, and another son, who has been emancipated, is passed over, he will receive half of the estate through the emancipated son, and if he did not have an emancipated brother, he would only be entitled to a twelfth part of the property. Where an heir is only appointed for a very small share of an estate, and the Edict is applicable, he will be not only entitled to the enjoyment of the share to which he was appointed heir, but he can obtain much more through prætorian possession. For the Prætor, when he grants possession of an estate in opposition to the terms of the will, decides to give those shares to each of the children which they would have been entitled to, if their father had died intestate, and the child had remained under his control. Therefore, whether the child who was emancipated, or remained under his control, or was given in adoption, was appointed heir to a small share of the estate, he will not be restricted to that portion of the same to which he was appointed heir, but will be entitled to a full share.

Ulpianus, On the Edict, Book XL. If, after the death of the testator, the appointed heir should give himself in adoption, he can obtain prætorian possession of the estate contrary to the provisions of the will, because the adoption of the appointed heir does not prejudice other heirs mentioned in the will. 1If a son should be given in adoption to his maternal grandfather by his natural father, and the Edict takes effect with reference to another child, the better opinion is that the latter can obtain possession of the estate; for we do not require him to enter upon it, but it is sufficient for it to be transferred to him, and that it can be legally acquired. 2Where a son is given in adoption, and, after having accepted the estate by the order of his adoptive father, he is emancipated, he can obtain prætorian possession of the estate in opposition to the terms of the will; for he himself will be more entitled to it than the adoptive father. 3It should be noted that if a son given in adoption should enter upon the estate, possession will be granted to him contrary to the provisions of the will; but, on the other hand, if anyone should receive a legacy or a share of the estate, he will be excluded from prætorian possession contrary to the terms of the will. 4Children who are not entitled to possession contrary to the provisions of the will cannot even obtain a share of the estate, if the Edict is applicable; for what good would it do to favor them and enable them to have a portion of it, since they are not entitled to anything? 5Children who have been disinherited cannot render the Edict operative, hence they cannot be joined with the others when the latter obtain possession of an estate under the Prætorian Law; and they have only one ground of complaint, that is, to allege that the will is inofficious. 6Those who demand prætorian possession in opposition to the terms of the will, for the benefit of others, do not wait until those children who have been passed over make application for possession, but they themselves can demand it at any time. For, having been once admitted to obtain it for the benefit of others, they do not concern themselves as to whether the former heirs intend to demand it or not.

Ulpianus, On the Edict, Book XL. This Title treats of a principle of natural equity which is introduced for a definite purpose; that is, in order to compel those who render a will of no effect by obtaining possession in opposition to its provisions to pay legacies and execute trusts for the benefit of certain persons, namely, children and ascendants, wives and daughters-in-law, to whom bequests of dowries have been made. 1The Prætor employs the terms ascendants and children in a general sense, and does not specify the different degrees of relationship; hence, payment must be made to them ad infinitum. Nor has the Prætor designated the different persons, or whether they belong to the male or the female sex. Therefore, anyone either in the ascending or descending line is permitted to claim his legacy; provided, however, the tie of blood-relationship exists between them. 2We permit those children also to claim their legacies who have been given in adoption by the testator, or who are adoptive, in case they still remain children until his death. 3Legacies bequeathed to posthumous descendants shall also be paid.

Ulpianus, On the Edict, Book XL. Where, however, donations mortis causa have been made, I think that they should be sustained; but if they are given to different persons than those above mentioned, it is my opinion that the recipients should be deprived of them. 1The Prætor, however, had in mind only descendants and ascendants, for he does not include a legacy left to a brother or a sister. 2Moreover, that solely is owing which was left directly to the ascendants or descendants; for if anything should be bequeathed to a slave belonging to them, or to a person subject to their authority, they will not be entitled to it, for we do not ask by whom the legacy is acquired, but who has received the honor. 3Where, however, a legacy is bequeathed conjointly to one of the above-mentioned persons and to another to whom payment should not be made, only the portion belonging to the former will be preserved. 4Likewise, if any one of those persons is charged to pay to a stranger a legacy which was left to himself, it must be said that it should not be paid, because he will obtain no advantage thereby. 5If you suggest a case where a legacy is bequeathed to a stranger, and he is charged to pay it to one of the descendants or ascendants of the testator, we hold that, under the circumstances, it should be paid. 6Moreover, if a bequest is left to a stranger under the condition that he shall pay it to one of the descendants of the testator, it is perfectly just to say that the Prætor ought not to refuse him an action to recover it. 7Again, only those legacies which are legally bequeathed should be paid by the persons who obtain prætorian possession of the estate contrary to the provisions of the will. Hence it is true that they are not payable where a son obtains prætorian possession in opposition to the terms of the will.

Ulpianus, On the Edict, Book XL. A testator appointed his son, who was under the age of puberty, his heir, and appointed a substitute for him, but passed over his emancipated son; and both sons afterwards obtained prætorian possession of the estate. Certain legacies were bequeathed which were to be paid by the substitute of the minor, not only to descendants and ascendants, but also to strangers. The question arises, if the child under puberty should die, whether the substitute would be compelled to pay the legacies. It may be stated that if the said minor is charged with the legacies, they must be paid only to the descendants or ascendants of the testator; but if the substitute of the minor was charged with their payment, he must pay them to all the legatees, after taking into account the Falcidian Law; that is to say, he can retain the fourth of the half of the estate of the father which came into his hands, or an eighth of the entire estate. 1If the said child under the age of puberty should be appointed heir to only one-twelfth of the estate, the better opinion is that the substitute must subject half of the assets to contribution and then pay the legacies, after having retained the fourth allowed by the Falcidian Law; for, even if the minor was appointed heir only to a twelfth of the estate, still, the accrual will increase the legacies with which the substitute is charged. 2The Prætor, moreover, desires that legacies should be paid to all the children, excepting those to whom he grants possession contrary to the provisions of the will, for the reasons above mentioned; since he does not think that they should be permitted to claim the legacies bequeathed to them after he has granted them prætorian possession. Hence a child should determine whether he prefers to demand prætorian possession in opposition to the terms of the will, or to claim his legacy. If he should elect to proceed against the will, he will not be entitled to the legacy; if he should accept the legacy, he cannot claim prætorian possession contrary to the provisions of the will; which is our present practice. 3Where anyone obtains prætorian possession of an estate in opposition to the terms of the will, and it afterwards should appear that he is not one of the children who is entitled to it, but still is one of those to whom legacies should be paid, it has been established that he shall not be deprived of the right to claim his legacy, whether by the ordinary proceeding under the Prætorian Law, or by that authorized by the Carbonian Edict. 4Again, a legacy may be refused not only if a person has obtained prætorian possession, but also if he has received anything by the will of the deceased. The result is, as Julianus says, that if an heir, who has obtained prætorian possession of the estate contrary to the provisions of the will, had already been appointed a substitute for his brother, who was under the age of puberty, in case of the death of his minor brother, he will be refused an action to recover his estate. 5Where legacies are bequeathed to the children of the testator, and to strangers, although the deduction prescribed by the Falcidian Law will be made in the case of all of them, and will diminish the legacies of the children; still, for the reason that the legacies will not be paid to the strangers, those of the children will be increased. 6If, however, a share of the estate should be bequeathed to one of the descendants or ascendants, must it be preserved for him in the same way as is customary with legacies? Julianus very properly holds that, in this instance, the same rule should be observed with reference to a share of the estate, as has been adopted with respect to a legacy. This opinion is approved by a Rescript of the Divine Pius, as estates are not only bestowed by an honorable title, but such testamentary dispositions are also invested with greater distinction than where mere legacies are bequeathed. 7Moreover, relief should be granted persons of this kind to the extent, however, of protecting only their full shares, even though they may have been left a larger portion of the estate; for if they had received a smaller portion, they would be only entitled to an action to recover as much as had been bequeathed to them. The same rule should be observed with reference to legacies, property left in trust, and donations mortis causa. 8Shall he to whom a portion of the estate has been left be compelled to pay the bequest to all the legatees, or only to certain privileged persons? It is approved as the better opinion that they should be paid only to the privileged persons. He, however, will not be the only one to be benefited by this; for if any share of the estate is charged with legacies, whether to descendants, ascendants, or strangers, we can entertain no doubt that whatever is not paid to the strangers will benefit the descendants and ascendants. Therefore, the only instance where legacies not paid to strangers will accrue to him who demands prætorian possession in opposition to the terms of a will is where they should not be paid to legatees who are either descendants or ascendants.

Ulpianus, On the Edict, Book XL. Let us see what we should understand by the term “full shares.” Suppose, for instance, that there are two persons who have obtained prætorian possession contrary to the provisions of the will, and there is only one heir among the descendants and ascendants, the third of the estate would be the full share due to each. Where, however, there are three persons who have obtained prætorian possession in opposition to the terms of the will, the full share due to each will be one-fourth. This rule is also observed in the case of legacies. Where, however, one of the descendants obtains prætorian possession in opposition to the terms of the will, and several of the descendants and ascendants have received legacies, we must understand the rule to be, that a son who has been passed over will be entitled to half of the estate, and that all the other heirs who are among the number of descendants and ascendants will be entitled to the remaining half. 1Where any one of the descendants or ascendants is appointed an heir, as well as a legatee, shall we preserve for him only his legal share of the estate, or shall we also pay him his legacy; or shall we only give him which of the two he may select? The better opinion is, that both should be preserved for him, in such a way, however, that in receiving both he shall not have any more than the share of the estate to which he is entitled. 2If he for whom the share is preserved enters upon the estate, the grants of freedom made by the testator will necessarily become valid through his acceptance. Nevertheless, we must consider whether he who enters upon the estate should be liable to an action on the ground of bad faith. The better opinion is that, if after notice has been served upon him by the heir who was passed over, he obtained prætorian possession of the estate contrary to the provisions of the will, he should accept it, promising to pay the other his full share, he will be somewhat to blame, and will be liable to an action on the ground of bad faith, for he injures the estate, as the grants of freedom will become valid. 3Where anything has been bequeathed to the wife or daughter-in-law of the testator over and above her dowry, the excess shall not be paid, where prætorian possession has been obtained contrary to the provisions of the will. 4There is no doubt, whatever, that by the term “daughter-in-law” the wives of grandsons and others are not indicated. 5Moreover, where a dowry is increased, I do not think that the bequest should be reduced to the full share, where it was left to the wife or the daughter-in-law, as these women are entitled to it as a valid debt. 6The Prætor not only includes a dowry as a privileged bequest, but also anything which has been left instead of the dowry; as, for example, where the dowry consists of certain property, and a sum of money can be bequeathed in its stead, or vice versa; provided, however, that it is expressly stated that the money is left in lieu of the dowry.

Ulpianus, On the Edict, Book XL. I think that the woman should also be protected, even if she has been appointed heir to a certain portion of the estate in lieu of her dowry. 1Moreover, we require that the woman should have been the wife of the testator at the time of his death. If he left the dowry as a preferred legacy to his daughter-in-law, and she should be married at the time of his death, the legacy is void, because the dowry is not yet payable. But as, while the marriage exists, an action will be granted against the heirs of the father-in-law, it must be held that the woman has the right to claim this preferred legacy of her dowry. 2He who demands prætorian possession in opposition to the terms of the will is not obliged to pay all the legacies bequeathed in the different degrees mentioned in the will, but only those which are bequeathed in that degree against which he obtained prætorian possession. For possession is sometimes demanded against another degree in which legacies must be paid; as, for example, when the testator has established two degrees of heirs, and has passed over his emancipated son, and still, in both degrees, he bequeathed legacies to descendants and ascendants. Julianus says that if anyone appointed in the first degree is living, the person obtaining prætorian possession must pay the legacies bequeathed to children and parents in the first degree; if, however, none of them are living, he must pay those left to persons in the second degree. But if no one belonging to either the first or the second degree should be alive at the time of the death of the testator, then, the son who has been passed over would seem to be entitled to prætorian possession ab intestato, and the legacies need not be paid to anyone. If, however, the appointed heirs should die after the death of the testator, and before the acceptance of the estate, the claim for prætorian possession would appear to be asserted against them; and any legacies with which they were charged should not be paid, but only those with which the substitutes have been charged.

Ulpianus, On the Edict, Book XL. Whether the appointed heirs accept the estate or not, it must be said that the legacies with which they are charged shall be paid, although those appointed in the second degree may have accepted the estate, after the first ones have rejected it.

Ulpianus, On the Edict, Book XIV. Sometimes a person obtains prætorian possession of an estate contrary to the provisions of the will, by a right which he enjoys in accordance with its provisions; for instance, where an emancipated son is appointed the heir, and another emancipated son is passed over in the will, and the appointed heir obtains prætorian possession in opposition to the terms of the will, and the heir who has been passed over fails to apply for it. In this instance, it is perfectly clear that the former can be compelled to pay all the legacies, just as if recourse had not been had to the Edict; for the accident of the emancipated son who was passed over ought not to be a source of profit to the heir who was appointed, merely because he who was passed over did not avail himself of his right. 1Where a son has been appointed heir by a testator, and is charged with a legacy to one of his descendants, or ascendants, and together with the others obtains prætorian possession of the estate in opposition to the terms of the will; it is better to decide that all those who have obtained prætorian possession in opposition to the terms of the will should be compelled to pay this legacy.

Ulpianus, On the Edict, Book XL. The subject of this Title manifestly is an equitable one; for the Prætor permits emancipated children to obtain possession of the estate in opposition to the terms of the will, and thus makes them share in the paternal estate with those who were under the control of the testator; and he thinks, on account of this, that those who desire to obtain the property of their father should place all their own property in the mass of the estate. 1Collation affects all those to whom prætorian possession has been given. 2It is clear that if the Prætor should grant complete restitution to a minor, or to anyone else entitled to it, he will also reinvest him with the right to obtain possession of the estate contrary to the provisions of the will, which he had failed to take advantage of, and will, in addition, restore to him the advantage of collation. 3If a son, who is under the control of his father, should be appointed heir to three-fourths of his estate, and a stranger heir to the remaining fourth, Julianus says that an emancipated son, who has obtained prætorian possession contrary to the provisions of the will, will only be compelled to collate his own property in proportion to a fourth of the estate, because he deprived his brother of only that amount. In proof of this opinion Pomponius states that an emancipated son is only obliged to collate his property with the grandsons of the testator, who were his own sons. 4A father appointed his son, whom he retained under his control, and a stranger his heirs, and passed over an emancipated son in his will. Both sons obtained prætorian possession of his estate in opposition to the terms of the will. It can, and not improperly, be held that the emancipated son should only collate with his brother in proportion to the amount of the estate of which he deprived him; for if the son who was under the father’s control had been appointed heir to less than half the property, it would seem unjust that collation should be required of him through whom the other son obtained a larger share of his father’s estate. 5Therefore, there is ground for collation as often as the heir who is under paternal authority is caused any inconvenience by the intervention of the emancipated heir. Where, however, this is not the case, there no reason for collation exists. 6Moreover, it is certainly not necessary for the emancipated son to place his property in the mass of the estate, when he obtained it through the will of his father and received no more than the latter left him. 7If he received half of the estate as a legacy, or as much as he could by prætorian possession contrary to the provisions of the will, it must be said that he cannot be subjected to collation. 8Julianus, in the same place, says that if after prætorian possession has been obtained by the emancipated son, the son who was under paternal control should die, the former can be compelled to make collation of his property in such a way as to contribute as much to his nephew as he would have contributed to his brother himself, if he had lived. If, however, the proper heir should die before having obtained prætorian possession of the estate, he says that the Prætor must protect his heir to the extent of the portion to which the son who was under paternal control was appointed heir, provided this does not exceed his share of the estate; but he does not permit him to apply for collation in this instance, because prætorian possession does not take effect. 9Again, the Prætor orders collation to be made in order that sufficient security may be given. Pomponius says that security should be furnished by means of sureties; but let us see whether it can also be furnished by depositing pledges. Pomponius, in the Seventy-ninth Book on the Edict, asserts that security for collation can be legally given either by sureties, or by pledges; and I concur in this opinion. 10If the brother cannot furnish security, a curator of his share must be appointed, with whom the money obtained from the estate should be deposited, so that the emancipated son can receive what was paid in after he has placed his own property in the mass of the estate. If, however, on account of his obstinacy, an action to collect his share of the estate should be refused him, after having given bond, he can recover his former rights. 11Moreover, although a bond is mentioned in the Edict of the Prætor, still Pomponius, in the Seventy-ninth Book of the Edict, states that even collation of the property itself can be made; for he remarks that collation can be made either by delivering the actual property or by executing a bond. Therefore, as he says, the emancipated heir divides his property with his brothers, and, although he does not give security, the terms of the Edict are complied with. We may also hold that they are complied with if he divides a portion of the property with them, and gives security to contribute more. But as some articles may remain concealed, he who does not furnish security will not make collation sufficiently, even though he divides his property. If, however, it is known of what the property of the emancipated son consists, the division of the same will constitute a sufficient collation. If this is not known, but it is said that certain effects have not been brought into the common mass, then bond must be given on account of their uncertainty. 12But even if the emancipated son should only place in the mass of the estate of his father as much of his own property as he will be entitled to, aside from the collation, he is said to have contributed sufficiently. The same rule applies where he surrenders the note of a debtor to the estate, or transfers a tract of land, or any other property, instead of what he should place in the common mass. 13If the emancipated son is obliged to make collation with two of his brothers, and does so with one, but not with the other, whether he gives him security, or divides his own property with him, it should be considered whether he will lose only one-sixth of the estate, or whether he should be deprived of the entire third of the same. I think that if he does not furnish security through obstinacy, an action to recover the entire third should be refused him; for he is not considered to have given security who did not provide for the indemnification of all the parties interested. But if he is not able to furnish it, only an action to recover the sixth should be denied him; in such a way, however, that he can supply the defect of the bond of the collation by the other means which we have mentioned above, or a curator may be appointed for the preservation of his property. Some allowance should, however, be made for one who does not fully contribute for some other reason than through obstinacy. 14A child who belongs to an adoptive family is compelled to make collation; that is to say, not he himself but the person to whose authority he is subject when required to do so, if he prefers to obtain prætorian possession contrary to the provisions of the will. It is evident that if his adoptive father should emancipate him before he claims prætorian possession of the estate, he will not be compelled to make collation, and this was stated in a Rescript of the Divine Brothers; provided, however, that the adopted son who has been emancipated releases his brothers from collation, if this was done without fraud. 15Neither castrense peculium, nor quasi castrense peculium is the subject of collation among brothers; for it is laid down in many Imperial Constitutions that such property must belong exclusively to each individual. 16But let us see whether anyone can be compelled to place, in the common mass of the estate, property which has been given by the father, or which is still due and payable on account of some office. Papinianus, in the Thirteenth Book of Questions, says that he should not be compelled to place such property in the common mass; for it must be considered to be of a private nature, on account of the obligations attaching to the office. If, however, it should still be due, the matter must be settled, so that not he alone who has obtained the office shall be liable for the debt, but that the common burden shall be sustained by all the heirs. 17Where a son, having been captured by the enemy, returns after the death of his father, even though at that time he had no property while he was in the hands of the enemy, he will, nevertheless, be permitted to obtain prætorian possession of the estate, and he must make collation of the property which he would have had at the time of his father’s death, if he had not been taken prisoner. Collation must also be made by him, if it should be ascertained that he had been ransomed from the enemy at the time of his father’s death. 18If a legacy should be bequeathed to an emancipated son, to take effect at the time of his father’s death, he must also make collation of the legacy. 19If a father should be appointed an heir, and a legacy be left to him in trust for his son, to be paid at the time of his death, must this also be the subject of collation, since the trust is valid? The fact is that it should be considered just as if it had been left after the death of the father, and the son will not be compelled to place it in the mass of the estate, because, at the time of his father’s death, it did not belong to him. 20If an emancipated son has received a dowry from his wife, he will not be required to place it in the mass of the estate, even if his wife should have died before the death of the testator. 21Where a minor, under the age of puberty, has been arrogated, he will be entitled to a fourth of the estate, in accordance with a Rescript of the Divine Pius; but let us see if he claims prætorian possession of the estate of his natural father, whether he must make collation of the said fourth. This question is merely whether he shall relinquish his right of action for the fourth to his heir, or not. The better opinion is that it passes to his heir, because the action is a personal one, and therefore he must give security to place the fourth in the mass of the estate. This, however, only takes place where the right to obtain the fourth has been already established; for if the adoptive father, who emancipated the heir, is still living, it must be said that no reason exists why security should be furnished; for the hope of collation is still premature, as he, the fourth of whose estate is due, is still living. 22Where a person who should make collation of his property has a son who is in possession of peculium, castrense, he cannot be compelled to place the peculium in the mass of the estate. If, however, the son who had the castrense peculium, and the possession of whose estate was claimed under the Prætorian Edict, should already be dead at the time, can the father be compelled to subject the peculium to collation? As it is not necessary for the father to claim it, it must be said that it should be placed in the mass of the estate; for it is neither acquired nor taken away. I further hold that if an heir has been appointed by the son, but he does not accept the estate, and should have a substitute, the peculium should be placed in the mass of the estate, for the reason that it is neither acquired nor alienated at that time. 23Moreover, collation must take place where property no longer, belongs to the emancipated son, and he has been guilty of fraud to avoid having possession of the same. This, however, must be understood to mean that it shall only be the subject of collation where he has relinquished possession of it fraudulently, but if he has done something in order to avoid obtaining the property, it will not be subject to collation; for, in this instance, he has plotted against himself. 24Collation must be made of different shares as follows: for instance, where there are two sons under the control of their father, and another who, having been emancipated, has three hundred aurei of his own, he must contribute two hundred to his brothers, after reserving a hundred for himself; for in this way he will share equally with them, even though he may be one who ordinarily does not make collation. Where, however, there are two emancipated sons, who have three hundred aurei, and two of them are under the control of their father, it must also be said that each one must contribute a hundred aurei to each brother who is under paternal control, and retain a hundred; but the emancipated brothers themselves will not be liable to collation with one another. The collation of a dowry is made in the same manner, so that whoever makes it will also include himself among those who share it.

Ulpianus, On the Edict, Book XL. Although the Prætor only compels a daughter to make collation of her dowry where she demands possession of the estate under the Edict; still if she does not do so she should make collation, provided she meddles with the estate of her father. This was stated by the Divine Pius in a Rescript addressed to Ulpius Adrian; for, according to it, a woman who does not demand prætorian possession of an estate can be compelled to contribute her dowry in collation by means of an action in partition brought by her co-heirs. 1Where a dowry has been provided for under an agreement, and the woman herself has stipulated for it, or someone has done so who has charge of her business, she can also be compelled to place it in the mass of the estate. If, however, the stipulation was solicited by another, it must be said that collation need not be made, and where the dowry was merely promised, collation of the same ought to take place. 2Where there is a grandson, as well as a granddaughter by the same son, and the granddaughter was endowed, and there was another son who was not the father of the said children, the granddaughter must place her dowry in collation for the benefit of her brother alone. Moreover, if the granddaughter should be emancipated, she must place her dowry and her property in the mass of the estate for the benefit of her brother alone, and not for that of her uncle. 3Where, however, there is only a granddaughter, and no grandson by the same father, then collation must be made for the benefit of the paternal uncle, as well as for that of cousins of either sex. 4Where there are two granddaughters by different sons, they contribute in collation reciprocally, and for the benefit of their uncle; if they have the same father, they only contribute reciprocally. 5Where a dowry is placed in the mass of an estate, a deduction of necessary expenses, but of no others, is made. 6If a divorce has taken place, and the husband is insolvent, the wife is not compelled to account for her entire dowry, but only as much of it as can come into her hands; that is, as much as her husband is able to pay. 7If, however, the father or a stranger has promised a dowry under a condition, a bond must be given; and then the woman can make collation of her dowry as soon as she is endowed. 8A daughter who is the heir at law of her father must also contribute her dowry, and the result will be that where the dowry is promised she will release her brother from half the obligation; for it is more just that she should be endowed out of her own property. 9Where an emancipated son, who has obtained prætorian possession of the estate in opposition to the terms of the will, has a daughter who has been endowed by someone else, he will not be obliged to place her dowry in the mass of the estate, because it does not constitute any part of his property.

Ulpianus, On the Edict, Book XL. Where anyone of those to whom the Prætor promises the possession of an estate is not under paternal control at the time of the death of his father, and he has children forming part of the family of the testator, and the estate will belong to them in their own right, and they have not been disinherited, possession of his share of the estate which would have belonged to him if he had remained under the control of his father is given him by the Prætor, in such a way that his share will be divided into two parts, one of which will belong to him, and the other to his children, and he will be compelled to place his own property in collation for their benefit alone. 1This Section of the Edict is perfectly equitable, as it provides that the emancipated son cannot alone obtain the estate, and thereby exclude the grandsons remaining under paternal control, and the grandsons cannot interfere with their father on the ground that they themselves were under the control of the testator. 2The case where a son is given in adoption, and a grandson, who is under the control of his natural grandfather, is joined with him in the succession, is also referred to in this Section of the Edict. Moreover, the grandson is joined with his emancipated father, whether his father was passed over, or was appointed an heir. There is this difference, however, between a son given in adoption and one who is emancipated, namely: the grandson is not joined with the one given in adoption unless he has been appointed an heir, and a third part is responsible for the Edict taking effect; but he is joined with an emancipated son, whether the latter was appointed an heir or passed over in the will. 3Julianus says that, where a son under paternal control is appointed an heir to two-thirds of the estate, and an emancipated son to one-third, if the grandson who has been passed over should obtain prætorian possession contrary to the provisions of the will, he will take from his uncle one-sixth, and from his father one-twelfth of the estate. 4If the emancipated father should be disinherited, and his children, the grandsons of the testator under paternal control, should be passed over, the said grandsons will be permitted to obtain prætorian possession; for it is absurd that, as they were joined with their father, and he was passed over in the will, they should not be admitted to prætorian possession, when their father has either been appointed an heir, or disinherited. 5If the uncle of the said grandchildren, who was under parental control, was passed over in the will, and their father should be disinherited, the said grandsons must be permitted to obtain prætorian possession, as their father, having been disinherited, is considered as dead. 6Scævola says that if a father, who remains under paternal control, is either disinherited or appointed an heir, a son born to him, whether he remains subject to paternal authority or has been emancipated, cannot, and should not be called to the succession of his grandfather; for the Prætor only provides for a grandson as long as he is retained under the control of the testator, his father having been emancipated. Therefore, for this Section of the Edict to be applicable, children must remain in the family, that is to say, that family the possession of whose estate is demanded. If, however, a posthumous child, having been conceived before his emancipation, should be born to the emancipated son, the same rule must be held to apply. 7The Prætor does not call all the descendants to the succession indiscriminately, but according to their several degrees; that is to say, first the direct heirs, for instance, the grandsons, if there are any, and if there are none, those of a lower degree; but we must not mix them. It is clear that if a grandson is descended from an emancipated son, and a great-grandson from another grandson, it must be said that both of them should be joined, for both have succeeded to the place of direct heirs. 8If a grandson should return under the law of postliminium, it must be held that he should be joined with his emancipated father. 9If a father should emancipate one of his two sons, both of whom he has under his control, and adopt a grandson by one of them, instead of his son, and, having passed over his emancipated son in his will, should die, Julianus says that relief must be granted the grandson who was adopted instead of the son, so that, in the capacity of son, he will have that share of the estate to which a stranger would have been entitled if he had been adopted by the testator. He says that the result will be that the son under paternal control will be entitled to a third part of the estate; the grandson adopted instead of the son will be entitled to another third; and the emancipated son will divide the remaining third with the other grandson remaining under the control of the testator. 10It makes no difference to what portion of the estate the grandson may be entitled, or even if it is very small; for in case it is insignificant, we still hold that there will be ground for the application of this Section of the Edict. 11The estate is divided between the son and his children so that he will obtain one-half, and they the other. Hence, if you suppose that there is only one son emancipated, and two grandsons remaining under paternal control, and that there are no other descendants besides these, the emancipated son will be entitled to half of the estate, and the two grandsons to the other half, after dividing it into fourths. If there should happen to be another son from whom no grandsons have ascended, he will be entitled to half the estate, and the other son, along with his sons, to the other half, so that he himself will have a fourth of the estate, and the other fourth will be divided among his children. Where, however, both sons have been emancipated, and both of them have issue, the result will be that each must divide half of the estate with his children, so that they themselves will each have a fourth, and their children respectively the remaining fourth. If one of them has two sons, and the other three, one-fourth will be divided among the two, and the other among the three children. 12Where one of the grandchildren refuses to accept his share of the estate, the result will be that his share will not belong to his father, but preferably to his brother. If, however, all the grandchildren refuse to accept their shares, none of them will accrue to the uncle, but to the father alone. If, however, their father should refuse them, then they will accrue to their uncle. 13If an emancipated son has no children under the control of their grandfather, the testator must place his property in collation for the benefit of his brothers. If there are any grandchildren, the Prætor wishes him to make collation only for the benefit of those of his children who are under the control of their grandfather. This is reasonable, because by obtaining prætorian possession of the estate he prejudices only the rights of his children. 14Now let us see how much he must contribute for their benefit. And, indeed, when the emancipated son makes collation for the benefit of his brothers, does he always deduct his own share for himself? And, in the above-mentioned instance, shall he deduct his entire share, or must only half of his own private property be placed in the mass of the estate, as he only is entitled to half of the share of what is obtained by prætorian possession? I think that he should contribute only half of his own private property for their benefit; but even if one son has been emancipated, and the other remains under the control of the testator, the emancipated son will only contribute one share for the benefit of the two grandsons, and one-third for the benefit of the uncle of those retained under the power of the testator, and he himself will be entitled to the other third. For whatever is placed in collation for the grandsons by the emancipated uncle, they themselves will not place in collation for the benefit of their own father; for they do not obtain this from the estate of their grandfather, but it is done on account of property which they have subsequently received. 15Hence, the result will be that if the emancipated father has a hundred aurei among his property, he will retain fifty for himself, and give the remaining fifty in collation to all the grandchildren, that is to say, to his own children; or if he has one grandson, and two great-grandsons by another grandson, he must divide the fifty aurei so that the grandson may have twenty-five, and the great-grandsons twenty-five together; for both are entitled to only one share in the prætorian possession of the estate. 16Scævola ingeniously discusses the following question, namely: where there is one son under the control of his father, and another is emancipated, and a grandson of a deceased son under the control of the testator, and another grandson who has been emancipated, how much should the emancipated uncle place in collation for the benefit of his nephews, and how much for that of his brother? He says it can be held that the property ought to be divided into three shares, one of which he shall retain, one shall be placed in collation for the benefit of his brother, and one for that of his nephews, although the latter, if they share with their father in the estate of their grandfather, will have less than their uncle. This opinion is correct. 17Even if there are two grandsons by the same son, and they are emancipated, and a great-grandson by one of them was under the control of the deceased, one grandson will have one share of the estate and the other grandson, together with his son, will be entitled to the other. If there is a grandson, and two great-grandsons by another grandson who is dead, and one of the said great-grandsons has been emancipated, he will only make collation for the benefit of his brother, or if he has no brother, for the benefit of his uncle, and not for that of his great uncle.