Ad Massurium Sabinum libri
Ex libro X
Dig. 8,4,10Ulpianus libro decimo ad Sabinum. Quidquid venditor servitutis nomine sibi recipere vult, nominatim recipi oportet: nam illa generalis receptio ‘quibus est servitus utique est’ ad extraneos pertinet, ipsi nihil prospicit venditori ad iura eius conservanda: nulla enim habuit, quia nemo ipse sibi servitutem debet: quin immo et si debita fuit servitus, deinde dominium rei servientis pervenit ad me, consequenter dicitur extingui servitutem.
Ulpianus, On Sabinus, Book X. Whatever a vendor wishes to reserve for himself by way of servitude, must be reserved in express terms, for a general reservation such as the following: “Any persons entitled to servitudes may certainly retain them”, has reference to strangers, and not to the vendor for the purpose of preserving his rights, for he has none, because no one owes him a servitude. Again, if I was entitled to a servitude, and the ownership of the land afterwards became vested in me, it is held that the servitude is extinguished in consequence.
Dig. 28,1,11Ulpianus libro decimo ad Sabinum. Obsides testari non possunt, nisi eis permittitur.
Ulpianus, On Sabinus, Book X. Hostages cannot execute a will, unless permission is granted them to do so.
Dig. 28,3,6Idem libro decimo ad Sabinum. Si quis filio exheredato nuru praegnate relicta decesserit et extraneum sub condicione instituerit et pendente condicione post mortem patris vel deliberante herede instituto de adeunda hereditate exheredatus filius decesserit et nepos fuerit natus, an rumpat testamentum? et dicemus testamentum non rumpi, cum nec exheredari huiusmodi nepos deberet ab avo, quem pater praecedebat. plane si forte institutus omiserit hereditatem, hunc avo suum futurum heredem ab intestato non dubitatur. utrumque propriis rationibus: nam adgnascendo quidem is rumpit quem nemo praecedebat mortis tempore: ab intestato vero is succedit cui ante eum alii non est delata hereditas, non fuisse autem filio delatam hereditatem apparet, cum deliberante instituto decesserit. sed haec ita, si mortis avi tempore in utero nepos fuit. ceterum si postea conceptus est, Marcellus scribit neque ut suum neque ut nepotem aut cognatum ad hereditatem vel ad bonorum possessionem posse admitti. 1Sed si pater eius, qui mortis avi tempore in utero fuit, apud hostes erat, nepos iste patre in eadem causa decedente post mortem avi succedendo testamentum rumpet, quia supra scripta persona ei non obstat: nec enim creditur in rebus humanis fuisse, cum in ea causa decedat, quamquam captivus reversus patris sui iniustum faceret testamentum in eo praeteritus. 2Sive autem in civitate nepos fuit conceptus sive apud hostes, quoniam datur et partui postliminium, succedendo testamentum rumpit. 3Succedendo itaque sui non rumpunt, sive fuerint instituti vel exheredati ab eo gradu ad quem hereditas defertur, scilicet si gradus ille valeat. 4Quocumque autem modo parentes praecedentes in potestate esse desierint, succedentes liberi, si fuerint instituti vel exheredati, non rumpent testamentum, sive per captivitatem sive per mortem vel poenam. 5Irritum fit testamentum, quotiens ipsi testatori aliquid contigit, puta si civitatem amittat per subitam servitutem, ab hostibus verbi gratia captus, vel si maior annis viginti venum se dari passus sit ad actum gerendum pretiumve participandum. 6Sed et si quis fuerit capite damnatus vel ad bestias vel ad gladium vel alia poena quae vitam adimit, testamentum eius irritum fiet, et non tunc cum consumptus est, sed cum sententiam passus est: nam poenae servus efficitur: nisi forte miles fuit ex militari delicto damnatus, nam huic permitti solet testari, ut divus Hadrianus rescripsit, et credo iure militari testabitur. qua ratione igitur damnato ei testari permittitur, numquid et, si quod ante habuit factum testamentum, si ei permissum sit testari, valeat? an vero poena irritum factum reficiendum est? et si militari iure ei testandum sit, dubitari non oportet, quin, si voluit id valere, fecisse id credatur. 7Eius qui deportatur non statim irritum fiet testamentum, sed cum princeps factum comprobaverit: tunc enim et capite minuitur. sed et si de decurione puniendo vel filio nepoteve praeses scribendum principi interlocutus est, non puto statim servum poenae factum, licet in carcere soleant diligentioris custodiae causa recipi. nec huius igitur testamentum irritum fiet, priusquam princeps de eo supplicium sumendum rescripserit: proinde si ante decesserit, utique testamentum eius valebit, nisi mortem sibi conscivit. nam eorum, qui mori magis quam damnari maluerint ob conscientiam criminis, testamenta irrita constitutiones faciunt, licet in civitate decedant: quod si quis taedio vitae vel valetudinis adversae inpatientia vel iactationis, ut quidam philosophi, in ea causa sunt, ut testamenta eorum valeant. quam distinctionem in militis quoque testamento divus Hadrianus dedit epistula ad Pomponium falconem, ut, si quidem ob conscientiam delicti militaris mori maluit, irritum sit eius testamentum: quod si taedio vel dolore, valere testamentum aut, si intestato decessit, cognatis aut, si non sint, legioni ista sint vindicanda. 8Hi autem omnes, quorum testamenta irrita damnatione fieri diximus, si provocaverint, capite non minuuntur atque ideo neque testamenta quae antea fecerunt inrita fient et tunc testari poterunt: hoc enim saepissime est constitutum nec videbuntur quasi de statu suo dubitantes non habere testamenti factionem: sunt enim certi status nec ipsi de se interim incerti. 9Quid tamen si appellationem eius praeses non recepit, sed imperatori scribendo poenam remoratus est? puto hunc quoque suum statum interim retinere nec testamentum irritum fieri: nam, ut est oratione divi Marci expressum, tametsi provocantis vel eius pro quo provocatur appellatio non fuerit recepta, poena tamen sustinenda est, quoad princeps rescripserit ad litteras praesidis et libellum rei cum litteris missum, nisi forte latro manifestus vel seditio praerupta factioque cruenta vel alia iusta causa, quam mox praeses litteris excusabit, moram non recipiant, non poenae festinatione, sed praeveniendi periculi causa: tunc enim punire permittitur, deinde scribere. 10Quid si quis fuerit damnatus illicite poena non sumpta, an testamentum eius irritum fiat, videamus: ut puta decurio ad bestias an capite minuatur testamentumque eius irritum fiat? et non puto cum sententia eum non tenuerit. ergo et si quis eum, qui non erat iurisdictionis suae, damnaverit, testamentum eius non erit irritum, quemadmodum est constitutum. 11Sed ne eorum quidem testamenta rata sunt, sed irrita fient, quorum memoria post mortem damnata est, ut puta ex causa maiestatis, vel ex alia tali causa. 12Quatenus tamen diximus ab hostibus capti testamentum irritum fieri, adiciendum est postliminio reversi vires suas recipere iure postliminii aut, si ibi decedat, lege Cornelia confirmari. ergo et si quis damnatus capite in integrum indulgentia principis sit restitutus, testamentum eius convalescet. 13Filii familias veterani sui iuris morte patris facti testamentum irritum non fieri constat: nam quantum ad testandum de castrensi peculio pro patre familias habendus est, et ideo nec emancipatione irritum fieri militis vel veterani testamentum verum est.
The Same, On Sabinus, Book X. Where anyone, after having disinherited his son, dies, leaving his daughter-in-law pregnant, and appoints a stranger his heir under some condition, and while the condition is pending and after the death of the father, or while the heir is deliberating as to whether or not he will enter upon the estate, the disinherited son should die, and a grandson should be born, will this break the will? We say that the will is not broken, as a grandson ought not to be disinherited in this way by his grandfather, who preceded his father in the succession. It is clear that if the appointed heir should refuse to accept the estate, there can be no doubt that this heir would inherit from his grandfather ab intestato. Both of these cases are founded upon good and sufficient reasons, for a posthumous child breaks a will by his birth, where no one took precedence of him at the time of the death of the testator, and he succeeds ab intestato where the succession has not been granted to anyone before him. It is evident that, in this instance, the succession has not been granted to the son, since he died while the appointed heir was deliberating as to his acceptance of the estate. This, however, is the rule only where the grandson was still unborn at the time of the death of his grandfather; for Marcellus says that if he had been conceived after that time, he could not be admitted to the succession either as a proper heir, a grandson, or a cognate, or would be entitled to prætorian possession of the estate. 1Where the father of a grandson who, at the time of the death of the grandfather, was in the hands of the enemy, and died in captivity, the said grandson, by obtaining the succession after the death of his grandfather, breaks the will, because his aforesaid father was not in his way; for, as he died while a captive, he is not considered to have been alive when his grandfather died, and even if the captive father should return, this would render the will of his father illegal, as he had been passed over therein. 2If a grandson was either conceived in his own country or among the enemy, as the right of postliminium is also granted to unborn children, the will will be broken by his birth. 3Therefore, those who succeed to proper heirs do not break the will, whether they are appointed heirs or disinherited in the degree in which the succession is granted, provided that this is valid. 4However, no matter in what way fathers standing first in the succession may cease to be under paternal control, whether through captivity, death, or the infliction of some penalty, their children who succeed them and who are either appointed heirs or disinherited by a will cannot break it. 5A will becomes invalid whenever anything happens to the testator himself; as, for instance, where he loses his civil rights through being suddenly reduced to slavery, for example, where he is captured by the enemy; or where, being over twenty years of age, he permits himself to be sold for the purpose of transacting the business of his purchaser, or to share in his own price. 6Where, however, anyone convicted of a capital crime is condemned to be thrown to wild beasts, or to fight as a gladiator, or some other sentence is imposed which will deprive him of life, his will becomes void, not from the time when he suffered punishment, but from the date of his sentence, for he then at once becomes a penal slave; unless, being a soldier, he is convicted of some military offence, for under such circumstances, it is customary for him to be permitted to make a will, as the Divine Hadrian stated in a Rescript; and I think that he can make one in accordance with military law. On this principle, therefore, as he is allowed, to make a will after his conviction, should one which he had previously executed be held valid, if he was allowed to make it, or should it be considered void on account of the penalty, after it has been made? There can be no doubt that, if he has a right to make a will by military law, and wishes the first will to be valid, he will be considered to have executed it. 7The will of a person who has been deported does not immediately become void, but only after the Emperor has confirmed the sentence, for then he who was condemned loses his civil rights. Where, however, the punishment of a Decurion is concerned, or that of his son or grandson, and the Governor refers the case to the Emperor, I do not think that the convicted party becomes at once a penal slave, although it is customary to incarcerate him for safe-keeping. Therefore, his will does not become void before the Emperor issues his decree that he must suffer the punishment. Hence, if he should die before this is done, his will will be valid, unless he takes his own life; for, by the Imperial Constitutions the wills of those who are conscious of their guilt are void, even though they may die while in possession of their civil rights. But where anyone, through weariness of life, or because he is unable to endure the suffering of illness, or through a desire for notoriety commits suicide, as certain philosophers do, this rule does not apply, as the wills of such persons are valid. The Divine Hadrian also made this distinction with reference to the will of a soldier, in a letter addressed to Pomponius Falco, stating that if anyone belonging to the army preferred to kill himself because he was guilty of a military offence, his will shall be void; but if he does so because he is tired of life, or on account of suffering, it will be valid, and if he should die intestate, his property can be claimed by his relatives, or, if he has none, by his legion. 8All those persons, whose wills we have stated become void because of their condemnation, do not lose their civil rights if they appeal from the decision of the tribunal; and therefore any wills which they may have previously executed do not become void, and it has very frequently been decided they can still make a will. They are not held to resemble those who are doubtful concerning their condition, and have not testamentary capacity, for they are certain of their condition, and they are only uncertain of themselves while the appeal is pending. 9But what if the Governor did not receive the appeal, but delayed the infliction of the penalty until it was confirmed by the Emperor? I think that the party in question would, in the meantime, also preserve his status, and that his will would not become invalid. For (as has been stated in the Address of the Divine Marcus) where an appeal which has been taken by the party directly, or by someone acting for him is not received, the infliction of the penalty must remain in abeyance until the Emperor answers the letter of the Governor and returns his decision together with the letter; unless the accused is a notorious robber, or has been guilty of fomenting sedition, or has perpetrated bloodshed, or where some other good reason exists which can be set forth by the Governor in his letter, and which does not admit of delay, not for the purpose of hastening the punishment, but in order to provide against danger to the community; for, under such circumstances, he is permitted to inflict the penalty and then communicate the facts to the Emperor. 10Let us see where someone has been illegally condemned and the penalty has not been inflicted, whether his will will be invalid. Suppose, for instance, that a decurion has been sentenced to be thrown to wild beasts, will he lose his civil rights, and will his testament become void? I do not think that this will be the case, as the sentence cannot legally bind him. Therefore, where a magistrate finds someone guilty who is not subject to his jurisdiction, his will will not be void, as has been frequently decided. 11The wills of those whose memory is condemned after their death, for example, on account of high treason, or some similar offence, are invalid. 12Ad Dig. 28,3,6,12Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 563, Note 7.With reference, however, to what we have stated, namely, that the will of anyone captured by the enemy becomes invalid, it must be added that the will regains its validity through the right of postliminium, if the testator should return; or if he dies while in captivity, it is confirmed by the Lex Cornelia. Therefore, where anyone is convicted of a capital crime, and is restored to his civil rights through the indulgence of the Emperor, his will again becomes valid. 13It has been settled that the will of a son under paternal control who has served his time in the army, and has become his own master through the death of his father, is not void; for when a son disposes of his castrense peculium by will, he must be considered as the head of a household, and therefore it is certain that the will of a soldier or a veteran does not become void by his emancipation.
Dig. 28,3,7Ulpianus libro decimo ad Sabinum. Si miles iure civili testamentum fecerit et primo gradu heredem eum scripserit quem iure militari poterat, secundo eum quem communi iure potest, et post annum missionis decesserit, primus gradus irritus fiet et a secundo incipiet testamentum.
Ulpianus, On Sabinus, Book X. If a soldier should make a will in accordance with the Civil Law, and appoint an heir in the first degree, which he is entitled to do under military law, and in the second degree should substitute someone as heir which he can do by the Common Law, and should die a year after his discharge, the first degree becomes invalid, and the will commences with the second.
Dig. 34,7,4Ulpianus libro decimo ad Sabinum. Placet Catonis regulam ad condicionales institutiones non pertinere.
Ad Dig. 34,7,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 638, Note 16.Ulpianus, On Sabinus, Book X. It is well established that the Rule of Cato is not applicable to the conditional appointments of heirs.