The Same, On the Edict, Book XLI. If a testator should make a substitution as follows: “If my son dies before reaching his tenth year, let Seius be my heir”; and the son should die after his tenth year, but before reaching his fourteenth, the better opinion is that the substitute cannot demand possession of the estate, for he is not held to have been appointed a substitute in this case.

Ulpiamis, On the Edict, Book XLI. The Prætor not only provides for the welfare of children who are already born, but also does not neglect those who are as yet unborn; for he protects their interests in one of the Sections of the Edict by placing an unborn child in possession of an estate instead of prætorian possession contrary to the terms of the will. 1It is absolutely necessary that the woman should be pregnant, and it is not sufficient for her to merely allege that she is in this condition. Therefore, such a grant of the possession of an estate is not valid, unless she was actually pregnant at the time of the death of the testator, on account of which she demands to be placed in possession. 2An unborn child is placed in possession of an estate whenever it is not disinherited, and where it will afterwards be included among the proper heirs. When, however, it is uncertain whether this will be the case, we sometimes place the unborn child in possession, if it may, under certain circumstances, become a proper heir; as it is sometimes more equitable for unnecessary expenses to be incurred than for maintenance to be refused to one who may become the owner of the estate. 3Therefore, if disinheritance is expressed in the following terms, “If a son should be born to me, let him be disinherited,” because a daughter may be born, or several sons, or a son and a daughter, and in either of these cases the unborn child will be placed in possession of the estate; for, while it is still uncertain what the birth will be, it is better for the child that has been disinherited to be supported than for one which may not be disinherited to perish with hunger, and any diminution of the estate made on this account ought to be ratified, even though the child who was excluded from the succession should be born. 4The same rule will apply if the woman who was in possession of the estate should have a miscarriage. 5If, however, the posthumous child was disinherited under a condition while the condition is pending, we adopt the opinion of Pedius, who held that the unborn child should be placed in possession of the estate; because, in case of uncertainty, it is always better for it to be supported. 6Where an unborn child is disinherited in the first place, and passed over as a substitute, Marcellus denies that it can be placed in possession while the appointed heirs are living, for the reason that it was disinherited; which is true. 7On the other hand, if an unborn child is passed over, as one of the appointed heirs, and is disinherited as a substitute, it should be placed in possession of the estate while the appointed heirs are living. If, however, they are not living, he says that this should not be done, because the estate passes to the degree in which the child was disinherited. 8Where a son has been captured by the enemy, and his wife is pregnant, she should be placed in possession of the estate of her father-in-law, for a case might occur where the child, after its birth, may become a direct heir; as, for instance, if its father should die in the hands of the enemy. 9If, however, anyone should disinherit an unborn child as follows, “If a child should be born to me within three months after my death, let it be disinherited,” or “After three months,” the unborn child is placed in possession because there is a chance that it may become a direct heir. In cases of this kind, the Prætor should always be very indulgent, in order that the child whose birth is expected may not die before it is born. 10Again, the Prætor never mentions the name of the wife, because it may happen that the woman who alleges that she is pregnant by her husband may not have been his wife at the time of his death. 11The unborn child of an emancipated son also may obtain possession of his estate. Therefore, in the Twenty-seventh Book of the Digest, the question is asked, if a son who was emancipated while his wife was pregnant, should afterwards die, and his father should also die, whether the unborn child can be placed in possession of the estate of his emancipated father. And he very correctly says that there is no reason why the unborn child whom the Edict permits to obtain possession should be excluded from it; for it is perfectly just to provide for the child who, after its birth, will be entitled to possession of the estate. If its grandfather should still be living, we also permit the unborn child to obtain possession of the estate of its father. 12If a son who is given in adoption should die, leaving his wife pregnant, and then the adoptive father should die, the unborn child will be placed in possession of the estate of his adoptive father. Let us, however, see whether he should also be placed in possession, of the estate of the father who gave his son in adoption. If this posthumous grandson is appointed heir of his natural grandfather, he will be placed in possession of his estate, because if there was no other child at the time of his birth, prætorian possession in accordance with the provisions of the will could be given him; or if there were other children, who had been passed over, he could, also, along with them obtain prætorian possession in opposition to the terms of the will. 13If a father should emancipate his son while his daughter-in-law is pregnant, the unborn child ought not to absolutely be excluded; for, after it has been born, it can be joined with the father under the new clause of the Edict. And, generally speaking, in those cases where a child, after its birth, can be joined with its father in the succession, it should be permitted to obtain possession before it is born. 14Where the woman who desires to be placed in possession of an estate is not the wife of the testator, nor his daughter-in-law, nor has ever sustained such a relation to him, or it is asserted that she is not pregnant by him, the prætor will render a decree, as under the Carbonian Edict. This the Divine Hadrian stated in a Rescript addressed to the Prætor, Claudius Proculus, directing him to assume summary jurisdiction of the case; and if it was evident that the woman who desired to be placed in possession of the estate in the name of her unborn child had been guilty of fraud, he must not decide in her favor. If, however, any doubt should exist, he was ordered to be careful not to cause any injury to the unborn child, but to place it in possession of the estate. Hence, it appears that, unless the woman was evidently guilty of deceit, she could demand a decision of the Prætor; and in case there should be any reasonable doubt as to whether she was pregnant by her husband, she must be protected by a decree, in order that the rights of the unborn child might not be prejudiced. The same rule is applicable where a controversy arises with reference to the social status of the woman. 15Generally speaking, we do not doubt that the Prætor should come to the relief of an unborn child in all those instances in which he is accustomed to grant possession under the Carbonian Decree where the child is already born; and this is done the more readily because the case of an unborn child is treated with greater indulgence than that of one who is already born; for this preference is conceded to the former in order that it may be brought into the world. A child is favored after it is born in order that it may be reared in the family, and an unborn child must be supported, because if he is not the son of his alleged father he will still be born to the State. 16If anyone, after having rendered his first wife pregnant, marries a second, and also renders her pregnant, and then dies, the Edict will suffice for both cases, provided no one disputes the right of either of the women, or accuses either of fraud. 17Moreover, whenever an unborn child is placed in possession of an estate, the mother usually asks that a curator be appointed for it, as well as for the estate. If, however, a curator is only appointed for the child, the creditors of the estate will be permitted to take charge of the property for safe keeping; but if a curator is appointed, not only for the child, but also for the estate, the creditors may rest secure, as the curator must assume the responsibility. Hence a curator should be appointed for the estate after an examination as to its solvency; and the creditors, or any other person interested in it, must see that the curator is solvent, and is not one who will be entitled to the succession, in case the child should not be born. 18The present practice is to appoint the same curator for both the property and the child. If, however, creditors, or anyone who has hopes of succeeding to the estate appears, the appointment should be made more carefully and circumspectly, and several curators should be appointed, if this is requested. 19Moreover, a woman who is placed in possession of an estate should take from the property only those things without which her child cannot be either nourished or born; and it is for this purpose that a curator ought to be appointed who will furnish food, drink, clothing, and lodging to the woman, in proportion to the means and rank of the deceased, and that of the woman. 20The deduction required for these expenses should be first made from the ready money belonging to the estate, and, if there is none, from the property which causes the greatest expense to the estate rather than from that which increases it by its income. 21Again, if there is any danger that some of the property may be obtained by usucaption, or debtors of the estate be released from liability by lapse of time, the curator must also attend to these matters. 22Therefore he must discharge the duties of his office just as the curators and guardians of wards are accustomed to do. 23A curator is selected from among those who have been appointed guardians pf a posthumous child; or from the near relatives and connections; or from the substitutes; or from the friends or creditors of the deceased. A person who is considered solvent should be chosen; and if there is any question as to the personal character of those above mentioned, an honorable man must be selected. 24If no curator should yet be appointed (for the reason that frequently application is not made for one, or it is made too late, or the appointment is made too late), Servius says that the testamentary heir or the substitute need not seal up the property, but shall make an inventory of it, and assign to the woman what she may require. 25He also says that a custodian ought to be appointed by the heir to take care of such property as cannot otherwise be preserved; as for instance, flocks or grain, and vintages, where the crops have not been gathered. If any controversy should arise as to how much should be taken from the estate, an arbiter must be appointed. 26I think that all this is disposed of when a curator has been appointed; the bills of sale and the inventory of the estate should, however, be signed by him. 27The unborn child should remain in possession until it comes into the world; or the mother has a miscarriage; or until it is certain that she is not pregnant. 28If she, being well aware that she was not pregnant, should use part of the estate, Labeo says that it should be taken out of her property.

Ulpianus, On the Edict, Book XLI. Where a posthumous heir is appointed who is a stranger, the unborn child will not be placed in possession of the estate unless its mother cannot support herself otherwise; for we hold that maintenance should not be denied to one who, after his birth, will become the possessor of the estate.

Ulpianus, On the Edict, Book XLI. If a dispute should arise as to whether a child under the age of puberty should be included among the descendants of the deceased, possession will be given it after proper cause is shown, just as if no controversy had arisen with reference to the matter; and, after investigation has taken place, the decision will be postponed until the time that the child arrives at puberty. 1If security for the minor is not given to him who raises the question, the Prætor orders him to be placed in possession of the estate along with the minor. 2Not only males, but also females descendants from males, are entitled to the benefit of the Carbonian Edict. 3In general, we say that those are entitled to the benefit of the Carbonian Edict who can obtain prætorian possession of an estate contrary to the provisions of the will; but those are not entitled to it who are excluded from obtaining such possession. 4If a child is made the subject of a controversy of this kind, namely: where it is denied that he should be included among the descendants of the deceased, and the question was raised not by a stranger, but by his own father; as, for instance, where a grandson alleges that his father was emancipated, and that he was retained under the control of his grandfather, and asks to be joined with his father, should the decision in this case be postponed? The better opinion is that it should be; for it makes very little difference who raises the controversy, as even if the testator should deny that he was included among his descendants, and he, nevertheless, did not disinherit him, there will be ground for the application of the Carbonian Edict. 5If anyone should deny not only that the child has a right to be included among the descendants of the testator, and should even allege that he is a slave, for instance, born of a female slave, Julianus says that there is ground for the application of the Carbonian Edict, which the Divine Pius also stated in a Rescript. For great care should be exercised with reference to those who are threatened with a serious wrong; as, if it were otherwise, any extremely bold man could inflict injury upon a minor under the age of puberty by relating many grave slanders and falsehoods about him. 6The same rule will apply, even where the deceased himself is said to have been a slave. 7There will also be ground for the application of the Carbonian Edict, where the Treasury raises the question as to the status of a minor under the age of puberty. 8Pomponius, in the Seventy-ninth Book of the Edict, says that where a son is appointed an heir, or is disinherited, the Carbonian Edict will not apply, even though it is denied that he is a son; because being, as it were, appointed heir, he has possession of the estate, even if he is not a son, or he will be excluded because of being disinherited, even if it should appear that he is a son; unless a posthumous child is appointed an heir, and, after his birth, it is denied that he is a son, although he is said to be under paternal control; in which case prætorian possession should only be given to him in proportion to the share of the estate to which he was appointed heir. 9He also holds that where anyone has disinherited his son, because he said that he was conceived in adultery, or where it was disputed as to whether he should be included among his children, he will be entitled to possession of the estate under this Section of the Edict; for, since he had been disinherited without giving any reason for it, he would not be entitled to possession of the estate. The same rule will apply where the following clause was inserted into a will, “Let anyone who says that he is my son be disinherited,” because a son is not disinherited in this way. 10If anyone should appoint his son his heir to a very small portion of his estate, as follows, “Let So-and-So, born of such-and-such a woman, be my heir,” and afterwards the said son should not admit that his father died intestate, and that he was his heir at law, it makes a difference whether his co-heirs deny that he is the son of the testator, or whether they say that the will is valid. If they say that the will is valid, the dispute should not be deferred, and the Carbonian Decree will not apply. If, however, they deny that he is the son of the testator, and allege that the estate belongs to them, as being the next of kin; possession of the estate will be given to the minor, and the decision of the controversy will be postponed until he arrives at the age of puberty. 11If the mother is accused of introducing a supposititious child, the question arises whether the controversy with reference to the civil condition of the child should be deferred for decision. Where only the condition of the child is in doubt, the question should be deferred until the age of puberty, because there may be reason to fear that it will not properly be defended. But where the mother herself is accused, as there is no doubt that she will, from the first moment, defend the civil status of the child, with the greatest good faith and constancy, there is no doubt that an investigation should be made, and if after the investigation it appears that the child was supposititious, every action for the recovery of the estate must be refused to it, and everything will remain in the same condition as if the child had not been appointed heir.

Ulpianus, On the Edict, Book XIV. The Carbonian Edict is applicable to the prætorian possession of an estate contrary to the provisions of the will, as well as to the possession ab intestato; since in some instances, the application of the Edict may become necessary when prætorian possession in accordance with the terms of the will has been granted; for example, where the testator appointed an heir as follows, “Let my posthumous child, whether it be a boy or girl, be my heir,” and it is denied that the statement in the will is true. 1Where a question arises with reference to a trust or a legacy, the matter can be deferred until the time of puberty; as the Divine Pius stated in a Rescript addressed to Claudius Hadrian. 2Although it is certain that prætorian possession under the Carbonian Edict is not promised to an appointed heir, still, there is no doubt whatever that any question as to his condition must be postponed until he reaches puberty. Hence, if at the same time a controversy arises with reference to the estate of his father and his own condition, this Edict will be applicable. Where, however, only his civil condition is in dispute, the question will be postponed until the time of puberty, not under the Carbonian Edict, but in accordance with the Imperial Constitutions. 3The Carbonian Edict gives no relief to children who have arrived at puberty, even though they are under twenty-five years of age. If, however, a child, who has arrived at puberty, represents himself as being under that age, and obtains prætorian possession of the estate, it must be said that the decree is void. For even if he was under the age of puberty, as soon as he arrives at that age, the benefit of the possession of the estate will terminate. 4In cases of this kind, an investigation is instituted to prevent possession of an estate from being given, if the deceit of those who demand possession of property in behalf of children should be clearly established; therefore, where possession is demanded under the Carbonian Edict, the Prætor should immediately take cognizance of the case. If he finds that it can be easily decided, and it is positively proved that the child is not a son, he can refuse to grant it Carbonian possession of the estate. But when he finds that the matter is involved in doubt, that is to say, that there is some slight evidence in favor of the child, and it does not clearly appear that he is not the son of the testator, he shall grant him Carbonian possession of the estate. 5Two causes exist for this investigation: one of them is to determine whether Carbonian possession which confers the advantage of enabling the minor to obtain prætorian possession, just as if no controversy had arisen, shall be granted; and the other is, to ascertain whether a decision ought to be rendered at once, or deferred until the age of puberty. The Prætor should carefully examine whether it is advantageous for the minor to have the decision rendered at once; or whether it will be better to postpone it until he reaches the age of puberty; and this he must, by all means, learn from the relatives, the mother, and the guardians of the minor. Suppose, for instance, that there are certain witnesses who, if the decision of the case is postponed, may either change their minds, or die, or whose testimony will not have the same force after a long period of time. Or, suppose there is some old midwife, or certain female slaves who can tell the truth with reference to the child; or that certain documents essential to his success are in existence; or that there are other proofs, and the minor will suffer greater injury if the examination is deferred than he will obtain benefit if the case is not decided at once. Suppose that the minor cannot give security, and that those who have been permitted to obtain possession of the estate are the persons who raised the controversy with reference to it, and who can abstract, change, or destroy much of the property belonging to the same; it would be either foolish or unjust for the Prætor to defer the matter until puberty, to the serious disadvantage of him who desires the matter to be disposed of. The Divine Hadrian stated in a Rescript: “Where the decision is ordinarily deferred until the age of puberty, this is done for the benefit of the minors, in order that this condition may not be imperiled before they are able to protect themselves. Moreover, if they have persons by whom they may be properly defended, and if it is to the interest of the said minors that the case should be quickly brought to trial, and a decision rendered, and the guardians of the minors desire it to be heard, what has been devised for the benefit of the minors should not be employed against them, and their condition remain in suspense when it can be established beyond a doubt.” 6If the mother of the minor, after being accused of having introduced a supposititious child, gains her case, the question as to the condition of the child may still remain unsettled; for example, it may be alleged that it was not begotten by the deceased, or, if it was, that it was not born in wedlock. 7If the person who disputed the condition of the child, and alleged that he himself was the only son, should die, and his mother should become his heir, and raise the same controversy with reference to the minor, that her own son did, stating that he was born of another woman; that is to say, if she should deny that he was the child of the deceased, and therefore that she herself was entitled to the entire estate of the deceased son, as his heir, Julianus says that a decision should not be rendered until the age of puberty, because it makes no difference whether the person who raises the question does so in his own name, or in that of the estate. It is evident that if the mother should admit that the child is the son of the deceased, and therefore claims for herself only half of the estate of the father, the decision of the case should not be deferred until the time of puberty; for she does not dispute the claim of the minor to the estate of his father, but to that of his brother. 8Julianus says, in the same place, that if a dispute arises with reference to the status of two minors under the age of puberty, and one of them reaches that age, they should wait until the other also arrived at puberty, so that the condition of both may be determined in such a way that the rights of the one who had not arrived at puberty, may not be prejudiced through a decision rendered against the one who had reached that age. 9It makes little difference whether the claimant is a minor under the age of puberty, or the possessor of the estate who raises the question as to the condition of the minor, for whether he is in possession, or demands it, the decision must be deferred until the time of puberty. 10Where two minors under the age of puberty raise a question as to the condition of one another, it makes a difference whether one of them alleges that he is the only son, or whether the other alleges that he also is a son. For if one says that he is the only son, it must be held that the decision of the case should be postponed until both of them arrive at puberty, whether the claimant or the possessor is the one who gives rise to the controversy. If, however, one alleges that he is the only son, and the other says that he is also a son, and the former should be the first to reach the age of puberty, the decision must be deferred on account of the youth of the one who asserts that he is a son; but this must be done partially and not entirely, for there is no dispute with reference to half of the estate. Where he who declares that he is also a son is the first one to attain the age of puberty, and he who alleges that he is the only son is under that age, the decision shall not be deferred; for there is no question with reference to the condition of the latter, since he is the one who makes the contest, as the one who has reached puberty, while he says that he is a son, does not deny that the other is also a son. 11Where a slave who is ordered to be free, and is appointed an heir, disputes the status of a minor, who is said to be the son of the testator, and has broken the will of his father, Julianus says that the decision with reference to both the estate and the bequest of freedom should be deferred until the age of puberty; for neither of these questions can be determined at once without prejudicing the rights of him who says that he is the son of the testator. Other matters with reference to testamentary bequests of freedom, and which are pending, shall also be postponed until the time of puberty. 12Where a minor under the age of puberty appears, and alleges that he is the son of the deceased, and debtors to the estate deny that this is true, but say that the property of the deceased intestate belongs to a relative, who, for instance, is beyond seas, the child must have recourse to the Carbonian Edict; but the interest of the absent person must be consulted by requiring security to be given. 13The Prætors exert themselves to place in actual possession those to whom possession has been given under the Carbonian Edict. If, however, a possessor under the Carbonian Edict should attempt to claim the estate, or any particular property belonging to the same, Julianus, in the Twenty-fourth Book of the Digest, very properly says that he should be barred by an exception, for he ought to remain content with the privilege of possession which the Prætor in the meantime has granted him. Therefore, if he wishes to claim the estate, or any property forming part of the same, he says that he must do so by means of a direct action in the capacity of heir; so that, after his application, it may be determined whether he is an heir, and is included among the children, in order that the presumption of Carbonian possession of the estate may not injure his adversaries. This opinion is both reasonable and just. 14Moreover, this possession is granted within the year, just as ordinary ones which are given to children. 15It is, however, necessary that he who alleges that he is a son should not only obtain Carbonian possession of the estate, but should also demand the ordinary prætorian possession. 16The periods necessary for obtaining both possessions run separately. The one which has for its object ordinary prætorian possession runs from the time when the son knew that his father was dead, and had the power to demand prætorian possession of the estate; and that of Carbonian possession runs from the time when the son knew that his condition was disputed.

Ulpianus, On the Edict, Book XLI. If he who institutes a contest against the minor is one of the children of the deceased, the result will be, whether he whose condition is in dispute gives security, or whether he does not do so, he will still be placed in possession. 1If the child under the age of puberty is not defended, and therefore his adversary is placed in possession, who will have the right to bring the actions in which the estate is interested? Julianus, in the Twenty-fourth Book of the Digest, says that a curator should be appointed who can take charge of everything, and bring the actions. He, moreover, says that the person who is placed in possession with the minor is not forbidden to institute proceedings against the curator, for in this way no injury is done to the estate, as he can legally bring his actions against the minor himself, if he has furnished security. 2Whenever a minor under the age of puberty does not give security, his adversary is placed in possession, whether he himself gives security or not. If his adversary wishes the administration of the property to be entrusted to him, he should furnish security to the minor; but if he does not do so, a curator should be appointed by whom the property shall be administered. Again, if the adversary should give security, he ought to sell any property which is liable to be either destroyed or depreciated by delay, and he must also collect all debts from the debtors, if they will be released by lapse of time; the remainder of the estate he shall keep possession of along with the minor. 3Moreover, let us see whether he who is placed in possession under the Carbonian Edict can diminish the estate in order to provide for his own support. If the minor has given security, he can use part of the estate for his support, whether a decree authorizing him to do so has been granted, or not; and he must return the remainder of the estate to the person who claims it. If, however, he is unable to give security, and it is evident that he cannot otherwise support himself, he should be placed in possession in order to enable him to obtain what is necessary for his subsistence. It ought not to appear surprising that a person, who may not prove to be the son of the deceased, is allowed to use part of the property for his support, since an unborn child is placed in possession of the entire estate by the Edicts, and support is given to his mother for the benefit of a child that may not be born; and greater care should be exercised to prevent the son from dying from hunger than to prevent a smaller amount of property coming into the hands of the claimant, if it should be decided that the child was not the son of the deceased. 4I think that it should, by all means, be asked of the Prætor that the documents of the estate shall not be placed in the hands of the adversary, if he obtains possession; otherwise, the minor may be defrauded either by his adversary obtaining information through them, or by enabling him to suppress them. 5When neither the minor nor his adversary gives security, a curator should be appointed who shall administer the property and deliver it to whoever gains the case. What, however, must be done if the guardians of the minor demand the administration? They should not be heard unless they give security in the name of the minor, or unless they themselves are appointed curators.

The Same, On the Edict, Book XLI. The Prætor has adopted a most equitable order of succession in the Edict. For he desires that, in the first place, the children shall be entitled to possession of the estate in opposition to the terms of the will, and then, if this should not be done, the will of the deceased must be complied with. Therefore the matter must remain in abeyance for the time during which the children can demand possession of the estate. When this period has elapsed, or if before this they should die, or reject the estate, or should lose the right to claim possession of it, then possession of the estate under the Prætorian Edict will revert to the appointed heirs. 1Where a son is appointed an heir under a condition, Julianus very properly holds that he can demand possession of the estate in accordance with the terms of the will, in the capacity of appointed heir, no matter what the condition is, even if it should be as follows, “when a ship should arrive from Asia.” And although the condition may not be fulfilled, the Prætor must, nevertheless, protect the son whom he permits to have possession in accordance with the provisions of the will, even if he had already obtained possession in opposition to them. This protection is especially necessary to a son who has been emancipated. 2Each appointed heir shall be given possession of the estate in proportion to the share of the same which has been bequeathed to him, in such a way, however, that if there is no one who demands it with him he may have sole possession. Nevertheless, while one of the heirs is deliberating whether or not he will take prætorian possession of the estate, possession of the share of his co-heir shall not be granted the latter. 3Where one substitute has been appointed for an heir if he should die within ten years, and another if he should die between the ages of ten and fourteen years, and the heir dies before he is ten years old, the first substitute will become the heir, and will obtain prætorian possession of the estate; but if the heir should die after he is ten years old, and before he reaches his fourteenth year, the second substitute will become the heir, and will obtain possession; but both cannot be joined, as each of them is substituted under a different condition. 4Prætorian possession of an estate in accordance with the terms of the will is granted to heirs appointed in the first degree, and afterwards, if they do not claim it, to the substitutes who come next in order, as well as to those who were substituted for the substitutes; and we grant possession to substitutes in regular order. We should understand heirs to be appointed in the first degree who are appointed first; for as they have the prior right to accept the estate, so also they should be the first entitled to prætorian possession. 5If anyone should say in his will, “Let the first be heir to half of my estate and if he should not be my heir, let the second be my heir; let the third be my heir to half of my estate, and if he does not become my heir, let the fourth be my heir,” the first and the third are those who will be permitted to obtain prætorian possession of the estate. 6If anyone should appoint heirs as follows, “Let whichever of my brothers who shall marry Seia be the heir to three-fourths of my estate, and let the one who does not marry her be the heir to a fourth of the same,” it is evident that if Seia should die, the heirs will be entitled to equal shares of the estate. If, however, she should be married to one of them, he will be entitled to three-fourths, and the other to one-fourth of the estate, respectively; but neither of them can demand prætorian possession before the condition has been complied with. 7Ad Dig. 37,11,2,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 548, Note 2; Bd. III, § 673, Note 1.If the name of the heir has been designedly erased, it is settled beyond a doubt that he cannot demand prætorian possession of the estate, any more than one who has been appointed an heir without consulting the testator; for he is considered as not having been designated whom the testator did not wish to appoint. 8Where two heirs are appointed, namely the first and the second, and a third is substituted for the second, if the second declines to take possession of the estate, the third will succeed to his place. If, however, the third should refuse to enter upon the estate, or to take prætorian possession of the same, possession of it will revert to the first; nor will it be necessary for him to demand prætorian possession, for it will accrue to him by operation of law, as prætorian possession accrues to an appointed heir in the same manner as his share of the estate. 9Where a slave is appointed an heir, prætorian possession of the estate is given to his master to whom the estate will belong; for prætorian possession follows the ownership of the property. Therefore, if at the time of the death of the testator, the appointed heir, Stichus, was the slave of Sempronius, and Sempronius did not order him to enter upon the estate because of his death, or for the reason that he had alienated the slave, and the latter had become the property of Septitius, the result will be that if Septitius should order the slave to accept the estate, prætorian possession of the same will be given to Septitius, for the estate will belong to him. Wherefore, if a slave should pass to three or four masters in succession we will grant prætorian possession of the estate to the last of them.

Ulpianus, On the Edict, Book XLI. Even if the right to wear a gold ring may have been obtained from the Emperor by a freedman, his patron will be admitted to prætorian possession contrary to the provisions of the will, as is stated in several rescripts; for this privilege only confers upon him the rights of a freeborn citizen, but he dies as a freedman. 1It is clear that, if he should be restored to his birthright by a judicial decision, prætorian possession of his estate contrary to the provisions of the will cannot be obtained. 2The same rule will apply where he has obtained from the Emperor unrestricted power to make a will. 3If anyone purchases a slave under the condition that he will manumit him, this will come under the above-mentioned Section of the Edict. 4When anyone receives a sum of money on condition that he will manumit his slave, he will not be entitled to prætorian possession of his estate in opposition to the terms of the will. 5In order that the patron may be able to obtain prætorian possession contrary to the provisions of the will, the estate must be entered upon, or prætorian possession of it demanded. It is, however, sufficient for one of the heirs to enter upon the estate, or to claim prætorian possession of the same. 6A patron has not the same right to the property of his freedman which the latter acquired while in the army, which he has to that otherwise acquired. 7Where a patron, after having been banished, is restored to his civil rights, he can obtain prætorian possession of the estate of his freedman contrary to the provisions of the will. The same rule must be held to apply to a freedman who has been banished and afterwards restored to his rights. 8If a son under paternal control manumits a slave who forms part of his castrense peculium, he becomes his patron by a Constitution of the Divine Hadrian, and, in the capacity of patron, he can obtain prætorian possession of the estate of the freedman in opposition to the terms of the will. 9If he to whom a freedman has been assigned should accuse the latter of a capital crime, he cannot demand prætorian possession of his estate in opposition to the terms of the will, but this does not prevent his brothers from doing so, for they must demand prætorian possession just as they would do if they were the grandsons of the other son, as the freedman who was assigned to him does not cease to be the freedman of the remaining sons. It must further be said that even if one brother should refuse to demand prætorian possession, the other to whom the freedman was not assigned can take his place, and claim prætorian possession of the estate contrary to the provisions of the will. 10A patron is entitled to prætorian possession of the estate of his freedman, contrary to the provisions of the will, whenever he is not appointed heir to that portion of said estate to which he is entitled. 11If a patron is appointed under a condition, and the condition is complied with during the lifetime of the testator, he cannot obtain prætorian possession of the estate in opposition to the terms of the will. 12What course should then be pursued if, at the time of death, the condition was in suspense, but was fulfilled before prætorian possession was granted to the patron; that is to say, before the estate of the freedman was entered upon? Would he be called to the prætorian succession under this section of the Edict? The better opinion is that the time when the estate was entered upon should be considered; and this is our practice. 13Still, if the condition has reference to the past or the present time, the patron will not be held to have been appointed heir conditionally; for the condition has either been complied with ana he is held to have been appointed absolutely; or it has not been complied with, and he is not appointed heir. 14Where a freedman appointed his heir as follows, “If my son should die during my lifetime, let my patron be my heir,” the will is not considered to have been improperly drawn; for if the son should die, as the condition has been fulfilled, the patron can obtain prætorian possession of the estate. 15If the portion of the estate to which he is entitled is bequeathed to the patron, enough has been done for him, even if he should not have been appointed heir. 16Where, however, he was appointed to a smaller share than he was entitled to, and the remainder has been made up to him, either by legacies or trusts, he is held to have been satisfied. 17The share to which the patron is entitled by law can also be made up to him by donations mortis causa, for these take the place of legacies. 18The same rule will apply where a freedman did not make a donation to his patron mortis causa, but gave him property in consideration of the amount of the estate to which he was entitled; for then it will either be held to have been given mortis causa, or what the patron has received will exclude him from obtaining prætorian possession of the estate contrary to the provisions of the will. 19Where anything is given to a patron for the purpose of complying with a condition, it should be included in the legal share of the latter, if it was derived from the estate of the freedman. 20We grant the patron his legal share of the property which the freedman had at the time of his death, for we take into consideration the time when he died. If, however, he diminished his property by some fraudulent act, the Prætor will decide that the patron is also entitled to it, just as if it belonged to the estate.