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1. Ulpianus, On the Edict, Book XXXIX.

Praetorian possession transfers both the benefits and inconveniences attached to an estate, as well as the ownership of the property belonging to the same; for all these things are associated with it.

2. The Same, On the Edict, Book XIV.

Praetorian possessors, in every respect, take the place of heirs.

3. The Same, On the Edict, Book XXXIX.

The term "property" in this instance (as we generally accept the term), must be understood to mean everything belonging to an estate to which succession is granted under the rights of the deceased, all benefits and disadvantages connected with it being included. For the estate is either solvent or insolvent, and is liable to loss or gain, or the assets consist of things which are corporeal, or of rights of action ; and, under these circumstances, they are very properly designated property.

(1) The possession of an estate, or praetorian possession (as Labeo says), should not be understood to be the actual possession of the property, for it is rather legal than real. Hence, where nothing corporeal belongs to the estate, Labeo holds that, nevertheless, praetorian possession may be acquired.

(2) Therefore, we define praetorian possession to be the right of recovering or retaining an estate, or the effects which belonged to someone at the time of his death.

(3) Praetorian possession of property is not acquired by anyone against his will.

(4) Praetorian possession can be acquired by municipalities, associations, decurite, and corporate bodies. Hence an agent of any of the said corporations can obtain it, or anyone else can do so in their name; and even if no one should demand or receive such possession in the name of a municipality, it still can acquire it under the Edict of the Praetor.

(5) Praetorian possession of property can be granted to the head of a household, as well as to a son under paternal control, provided the latter has the right of disposing of his peculium castrense or quasi castrense, by will.

(6) There is no doubt that praetorian possession of the estate of a person who has died in the hands of the enemy can be acquired, even though he may have died in a condition of slavery.

(7) Any person can obtain praetorian possession either himself or through the agency of another. If, however, someone should demand possession for me, when I have not directed this to be done, his act will not be legal until I have ratified it. Moreover, there is no doubt that if I should die before ratifying his act, I will not be entitled to the possession of the property, because I have not consented to what he has done, and my heir cannot do so, as the right to claim praetorian possession does not pass to him.

(8) Where praetorian possession is granted after proper cause has been shown, it shall not be granted anywhere else than in court, because the Praetor cannot render such a decree without ceremony; nor, after an investigation, can praetorian possession be granted anywhere else than in his tribunal.

(9) It should be remembered that the right of accrual applies to the praetorian possession of property. Hence, if there are several persons entitled to such possession, and one of them obtains it, the others are not included:

4. Gaius, On the Lex Julia et Papia, Book VIII.

(For instance, where they have relinquished their right, or have been excluded from praetorian possession by lapse of time, or have died before demanding possession) :

5. Ulpianus, On the Edict, Book XXXIX.

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

6. Paulus, On the Edict, Book XLI.

But where the Praetor promises possession of a certain part of an estate to a patron, contrary to the provisions of the will, and promises possession of the remainder to the appointed heir, in accordance with the terms of the will, it is held that the right of accrual does not apply. Therefore, he promises possession of his share expressly to the patron, when the appointed heir does not claim his share under the will; as those entitled to the right of accrual must, at least once, demand possession of the estate.

(1) There are various advantages attaching to praetorian possession, for some kinds of possession are obtained contrary to the provisions of the will of the testator, and others in accordance with them; and sometimes the parties have a lawful right to it on the ground of intestacy, or they are not entitled to it because of having changed their civil status. For although, under the Civil Law, children are excluded from being direct heirs on account of their change of condition, still, the Praetor can, for equitable reasons, rescind this forfeiture of citizenship. He therefore grants possession of the property for the purpose of observing certain laws.

(2) Testamentary notes are not considered by the Edict as wills; for Pedius in the Twenty-fifth Book on the Edict says that notes are not letters.

7. Ulpianus, On Sabinus, Book I.

A slave can legally be granted possession of an estate if the Praetor is certain of his civil condition. Possession can also be granted to a person who is absent and does not demand it, if the Praetor is not aware that this is the case. A woman, also, can apply for praetorian possession in behalf of another.

(1) A minor under the age of puberty cannot be granted possession of an estate by the Praetor, nor can he join issue in the case, without the authority of his guardian, because a guardian can demand possession for his ward, and a father can do so for his son.

(2) It has been decided that the time when possession must be demanded for a minor begins when the guardian or father became aware that the minor was entitled to it.

8. Paulus, On Plautius, Book VIII.

Moreover, a guardian cannot reject the praetorian possession of an estate to which his ward is entitled, because a guardian is permitted to claim it, but not to reject it.

9. Pomponius, On Sabinus, Book III.

Where there are several persons of different degrees of relationship entitled to praetorian possession, as long as it is uncertain whether one of them has the right to demand possession, or not, it has been settled that the time does not run against one of the last degree.

10. Paulus, On Sabinus, Book II.

Ignorance of the law is of no advantage in preventing the claim from being barred by lapse of time, in the case of praetorian possession of property. Hence, the time begins to run, so far as the appointed heir is concerned, even before the will has been opened; for it is enough for him to know that the testator is dead, and that he is his next of kin, and had access to persons of whom he could ask advice. For, in this instance, knowledge is not understood to be such as is possessed by persons learned in the law, but such as anyone whosoever may possess, or can acquire by applying to others who are more learned than himself.

11. Gaius, On the Provincial Edict, Book XIV.

Where a guardian claims praetorian possession in behalf of his ward, and it is found to be of greater disadvantage than benefit to him, the guardian will be liable to an action on guardianship.

12. Ulpianus, On the Edict, Book XLVIII.

There is no reason to doubt that persons can, very frequently, obtain praetorian possession against the Treasury, and against a municipality; as, for example, where an unborn child, a lunatic, or one who is a captive in the hands of the enemy, claims praetorian possession of property. Whenever a law, a Decree of the Senate, or an Imperial Constitution forbids an estate to be taken, praetorian possession of it will not apply.

13. Africanus, Questions, Book XV.

The possession of property by the Edict of the Praetor is refused to those who have been condemned for a capital crime, unless complete restitution has been granted them. A person is understood to have been condemned for a capital crime upon whom the penalty of death, or the interdiction of water and fire has been imposed. Anyone, however, who has been exiled, can be admitted to the praetorian possession of property.

14. Papinianus, Questions, Book XIII.

Where a near relative of the deceased alleges that his will was forged, and proves it after a long period of time, although the time for demanding possession is held to have elapsed, and the plaintiff, being certain of proving his allegations, may have claimed it, still, for the reason that he asserted his claim in order to preserve his rights, it is not unreasonable that he should be considered to have accepted the succession.

15. Paulus, Opinions, Book XI.

Paulus gave it as his opinion that the application of a mother, alone, could not acquire praetorian possession of an estate for her daughter, who was under the age of puberty, unless he who granted it evidently intended to give it to the minor child.

16. The Same, Sentences, Book III.

When the person for whom praetorian possession is demanded subsequently becomes insane, the better opinion is that he will be held to have ratified the act, for a ratification only means the confirmation of a former demand.

 

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Tit. 2. Concerning praetorian possession where there is a will.

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1. Paulus, On Sabinus, Book III.

Praetorian possession of property can, under no circumstances, be granted to an heir whose name has been erased from the will so that it can hardly be read, even though this has been done unintentionally; because the presumption is that it was not properly inserted, although such possession may be granted if the name has been defaced after the will has been produced. For if the will was in existence at the time of death, even though it may have been subsequently destroyed, praetorian possession of the estate can be granted, because it is true that there once was a will.

 

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Tit. 3. Concerning the praetorian possession of property granted to an insane person, an infant, or one who is dumb, dead, or blind.

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1. Papinianus, Questions, Book XV.

Titius was substituted as the heir of an insane person. The time prescribed for demanding praetorian possession does not run either against the appointed heir, or the substitute, as long as the insane person remains in the same condition, and if the curator of one who is insane acquires possession in his name, the time fixed for making the claim by those who are aware of the facts will not run against him. For a father can demand possession in behalf of his infant child, but if he fails to do so, the child will not, for that reason, be excluded. But what must be done if the curator refuses to make the application? Will it not be more just and proper to give possession to the next of kin to prevent the property from being without an owner ? If this is admitted, the substitute can be compelled to give security to all those to whom the property should be transferred, if the appointed heir should die while insane, or if, having recovered his senses, he should afterwards die before accepting the estate; for the substitute himself might die during the lifetime of the insane person, and still he would not interfere with the claims of the others, if he himself should die before acquiring the estate.

2. Ulpianus, On the Edict, Book XXXIX.

A person who is dumb, deaf, or blind, can obtain praetorian possession of property, if he understands what is taking place.

 

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Tit. 4. Concerning the praetorian possession of property contrary to the provisions of the will.

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1. Ulpianus, On the Edict, Book XXXIX.

We must understand the term "children" when used with reference to the praetorian possession of an estate contrary to the provisions of the will, to mean either natural or adopted children, where they have either been appointed heirs, nor disinherited.

(1) Moreover, children are called to the praetorian possession of an estate contrary to the provisions of the will by the same right, and in the same order, in which they are called to the succession under the Civil Law.

(2) This general principle is also held to apply to posthumous children.

(3) Pomponius thinks that where children return from captivity by the enemy, and enjoy the right of postliminium, they can be admitted to praetorian possession contrary to the provisions of the will.

(4) Where one of three sons has been taken prisoner by the enemy, the two remaining ones who are at home will be entitled to praetorian possession of two-thirds of the estate.

(5) The same rule applies to a posthumous child, for as long as his birth is expected, he will be entitled to a share of the estate.

(6) The Praetor gives possession of property to children who are their own masters. For if they have been emancipated, or released from parental control in some other manner, they are allowed to acquire possession of the estate; but this is not the case with an adopted child, since, in order for it to be admitted to praetorian possession, it must be included in the number of children.

(7) A certain man had a son, and a grandson by the latter. He emancipated his son, and adopted him instead of his grandson, and then emancipated him a second time. The question arose whether he prejudiced the rights of the grandson. The better opinion seems to me to be that the grandson was not excluded, as his father either remained adopted as a grandson, or was emancipated. For I think that the father, having once been emancipated, the grandson, together with his father, should, under the terms of the Edict, be entitled to possession of the estate.

(8) A man had a son, and by him a grandson; the son was emancipated, or, having remained under his father's control, was banished. The question arose whether this would prejudice the rights of the grandson. The better opinion is that, in either instance, the grandson should be permitted to have praetorian possession of the estate, for persons who are banished are considered to be dead.

(9) Where a father and his son were both banished, and both regained their rights, we say that the son ought to be admitted to praetorian possession of the estate. Where, however, the son was sentenced to the mines, or to any other punishment equivalent to servitude, and was afterwards restored to his rights, he will, nevertheless, be admitted to praetorian possession of the estate; but this will not be the case if he should not be restored to his former condition.

2. Hermogenianus, Epitomes of Law, Book III.

The same rule will apply if the father should be condemned to penal servitude, and should afterwards regain his rights.

3. Ulpianus, On the Edict, Book XXXIX.

Not only are emancipated children themselves admitted to the praetorian possession of property, but also their children as well.

(1) Where a man has two grandsons, and after emancipating one of them adopts him instead of his son, let us see whether he alone will be entitled to praetorian possession as a son. This is based upon the presumption that the deceased adopted the said grandson as his son, and as the father of the other grandson whom he retained under his control. In this case it is better to hold that he alone will be entitled to possession of the estate under the Praetorian Law.

(2) But if the said grandson should be emancipated, it is preferable to conclude that he will not be entitled to possession in the capacity of a son. For this so called son is not included in the number of children, as his right acquired by adoption has been lost by emancipation.

(3) If I have a son, and by him a grandson, and adopt the grandson instead of the son, both will be entitled to praetorian possession; but it is clear that if the grandson should be emancipated he will not be permitted to have possession because his father takes precedence of him.

(4) If anyone, after having been emancipated, should give his son to his father to be adopted as his own son, it is perfectly just that all rights to which any other arrogated child is entitled should be conceded to him, and therefore he ought to be joined with his father, when praetorian possession of an estate is granted. If the said grandson should be emancipated after his adoption, it will be perfectly just for him to be excluded, for then he resumes his proper place, and should not be joined with his father.

(5) If an emancipated son marries a woman without the consent of his father, and a child is born to him, and his father having died, the said grandson applies to be placed in possession of the estate of his grandfather, his application should be granted. For, by setting aside the emancipation by the Praetor, a legitimate son does not lose his rights as such; for a rescission of the emancipation is made in order that the children may, the more readily, obtain praetorian possession of the estate, and not be excluded from it. And even if the son should marry a woman of such bad character that marriage to her would be dishonorable to himself, as well as to his father, still, we say that a child born of the said woman should be permitted to obtain possession of the property of the estate, as his grandfather could have availed himself of his right to disinherit him. In the decision of a case where the will has been attacked as inofficious, the magistrate who has jurisdiction, in rendering judgment must weigh the merits of the grandson as well as the offences of the father.

(6) Where an emancipated son, who was passed over, gives himself to be arrogated before an application for praetorian possession of the estate is made, he loses his right to demand possession contrary to the provisions of the will.

(7) Where anyone gives his grandson, whom he has under his control, in adoption to his emancipated son, the father of said grandson will be permitted to take possession of the estate of the grandfather, contrary to the provisions of the will, if his father is already dead, because he belongs to his family; and he himself can be permitted to take possession of the estate contrary to the provisions of the will.

(8) The same rule applies where an emancipated son gives his own son, who was born after his emancipation, to his father, in adoption, and then dies; for, in this instance, the said grandson should be permitted to acquire possession of the estate of his father, just as if he did not belong to another family.

(9) Where a father enters a family by adoption, and his son does not, can the son acquire possession of the estate of his father who died while a member of the adoptive family ? I think that the more equitable opinion is, that the son, although he may not belong to the same family as his father, should still be permitted to take possession of the property of his estate under the Praetorian Law.

(10) Children who cannot legally be appointed heirs are not entitled to demand possession of an estate contrary to the provisions of the will. The words, "Cannot be appointed," refer to the time of the death of their father.

(11) Where one of several children is appointed heir, he should not be permitted to take possession of the estate in opposition to the provisions of the will. For if he was entitled to possession under the will, what good would it do to give him possession in opposition to it? It is clear that, if another child should have recourse to the Edict, he would be entitled to possession contrary to the provisions of the will.

(12) Where, however, anyone is appointed heir under a condition, he cannot obtain possession of the estate in opposition to the will; and this was stated by Julianus in the Twenty-third Book of the Digest. But what if the condition should not be complied with? It is true that then he could obtain possession contrary to the provisions of the will.

(13) If an emancipated son should be appointed heir under a condition which it is not in his power to comply with, he can receive praetorian possession of the estate contrary to the provisions of the will; and he ought to receive it, because he was appointed heir, but he cannot obtain it contrary to the provisions of the will. If, however, the condition should not be fulfilled, he must be protected by the Praetor to the same extent as if he had obtained possession contrary to the provisions of the will.

(14) Even if a grandson is appointed heir under a condition of this kind, the same rule will apply.

(15) Where one of several children is not appointed heir, but his slave is appointed, and he orders him to accept the estate, possession contrary to the provisions of the will should be denied him.

(16) The same rule applies if the child should prefer to take what was left to him, or to his slave; for, in this instance, the possession of the estate contrary to the provisions of the will should be refused him.

4. Paulus, On the Edict, Book XLI.

It should be noted that the possession of property contrary to the provisions of the will is promised to children whether there is an heir, or not. And this is the reason why we say that the children have a right to the possession of the estate in opposition to the will itself. The contrary rule applies to the case of a patron.

(1) Where anyone appoints an heir whom he has under his control, or disinherits him, and passes over a grandson by him, there is no ground for the application of the Praetorian Law, because the grandson will not be his legal heir. This rule is also applicable to more distant degrees of relationship.

(2) The Edict granting possession contrary to the provisions of a will does not apply to the wills of women because they have no heirs-at-law.

(3) Where an unborn child is passed over, another child, who has been appointed heir to his father, can be permitted to take possession of the property of the estate, even before the birth of the child first mentioned; because it would be unjust for an heir, who was not appointed, to claim possession of the estate, so long as such possession can be demanded contrary to the provisions of the will, and possession cannot be granted contrary to the provisions of the will, as long as the child who has been passed over is not yet born; and even if he should die before birth he will, nevertheless, transmit the right of possession of the estate to his heir. This is especially necessary where an emancipated child has been appointed heir, as, in the meantime, he cannot enter upon the estate.

5. Julianus, Digest, Book XXIV.

If, however, the children should die before demanding praetorian possession of the estate, it will not be unjust for the Praetor to decide that their heirs shall have the advantage of possession, either in compliance with the provisions of the will, or in opposition to the same.

6. Paulus, On the Edict, Book XL.

Where an emancipated son has a son and then dies, and the grandfather dies afterwards, the grandson will be entitled to praetorian possession of the estate of his grandfather.

(1) Where the grandfather has emancipated his son and grandson, the grandson will not be entitled to his estate during the lifetime of the son, but after the death of his father he will be entitled to praetorian possession of the estate of his grandfather.

(2) If the grandson alone should be emancipated, and the grandfather, and then his father, should die, the grandson, who has been emancipated, will be entitled to the estate of his father, under the Praetorian Edict, because he would be the heir of his father if he had not been freed from the control of his grandfather.

(3) Where a son has been emancipated, and the grandson retained under the control of the grandfather, and both of them have been passed over, both will be entitled to possession of the estate under the Praetorian Law.

(4) If the son who has been emancipated belonged to an adoptive family, and has a son, the grandson will not be entitled to the possession of the estate of the natural grandfather under the Praetorian Edict. And even if the emancipated son, after having had sons born to him, should give himself in adoption, the same rule will apply. It is clear that if a child born in the family of the adoptive grandfather should be emancipated, he will be entitled to praetorian possession of the estate of his natural grandfather. Adoption does not prejudice the rights of a child, so long as he remains in a strange family. Moreover, if he is emancipated, he can obtain possession of the estate of his parents under the Praetorian Edict; provided that he is emancipated during their lifetime, and not after their death; for it is certain that he cannot be emancipated after their decease.

7. Gaius, On the Provincial Edict, Book XIV.

If a son should be emancipated, and his son retained under the control of his grandfather, the grandson, during the lifetime of his grandfather, will be permitted to obtain praetorian possession of the estate of his father.

8. Ulpianus, On the Edict, Book XL.

The Praetor does not think that children who have been disgraced by disinheritance, and excluded from the succession, should be permitted to obtain praetorian 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.

(1) It 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 Praetorian 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 praetorian possession of the estate, the said son can obtain possession of the same in opposition to the terms of the will.

(2) Every 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.

(3) When 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 Praetorian Law, in opposition to the terms of the will, against any of the other heirs.

(4) If 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 praetorian possession of the estate in opposition to the terms of the will.

(5) Where 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 praetorian 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 praetorian possession of it be claimed. If, however, the appointed heir should die after the death of the testator, Marcellus holds that the right of praetorian 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 praetorian 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 praetorian possession of the estate in opposition to the terms of the will.

(6) Where anyone writes his disinheritance with his own hand, let us consider whether he can obtain praetorian 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.

(7) Where 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.

(8) With 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.

(9) Where a son has returned from captivity under the right of postliminium, it must be said that disinheritance previously made will injure him.

(10) If 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.

(11) The Praetor 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 praetorian 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.

(12) Moreover, in order that these children should be permitted to obtain praetorian 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, praetorian possession of the estate contrary to the provisions of the will shall not be granted to the aforesaid child.

(13) Praetorian 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.

(14) It 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 praetorian possession. For the Praetor, 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.

9. Gaius, On the Provincial Edict, Book XIV.

It makes no difference whether the adoptive father is living or dead, for the only inquiry made is whether the child belongs to the adoptive family.

10. Ulpianus, On the Edict, Book XL.

If, after the death of the testator, the appointed heir should give himself in adoption, he can obtain praetorian 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.

(1) If 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.

(2) Where 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 praetorian 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.

(3) It 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 praetorian possession contrary to the terms of the will.

(4) Children 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?

(5) Children 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 Praetorian Law; and they have only one ground of complaint, that is, to allege that the will is inofficious.

(6) Those who demand praetorian 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.

11. Paulus, On the Edict, Book XLI.

Where a son given in adoption is appointed heir by his natural father, and another claims the benefit of the Edict contrary to the provisions of the will, the latter will be entitled to the preference. If, however, the condition should fail to be fulfilled, he will be excluded from possession. I think that this also applies to him who has been absolutely appointed an heir, but that was not done in conformity to law.

(1) Praetorian possession of an estate contrary to the provisions of the will is divided in the same manner as legal succession on the ground of intestacy. Hence grandsons by one son will have a single share between them.

12. Gaius, On the Provincial Edict, Book XIV.

Where two sons together with two grandsons by another son are entitled to praetorian possession of an estate, and one of the grandsons does not claim it, his share will accrue to his brother; but if one of the sons does not claim possession, his brother, as well as the grandsons, will profit by it, for then the estate will be divided into two equal parts, of which the son will obtain one, and the grandsons the other.

(1) Where there are two wills, and one, by which a son is disinherited, is properly drawn up, and the second, in which the son is passed over is imperfect, he who is passed over in the last will can legally claim praetorian possession of the estate, if the heirs mentioned in the second will are such as should have preference over those mentioned in the first, in case the son should be excluded. Hence the rule is established that, when he against whom the son claims praetorian possession of the estate can obtain it if the son should be excluded, the latter also can legally demand praetorian possession, but if he could not obtain the estate, the son will also be excluded.

13. Julianus, Digest, Book XXIII.

Where an emancipated son obtains praetorian possession of an estate in opposition to the terms of the will, the appointed heir will be compelled to surrender to him the lands and slaves belonging to the estate; for it is only just that everything which the appointed heir has obtained from the estate should be transferred to him whom the Praetor has appointed in his place.

(1) Where anyone has two sons, and gives in adoption a grandson by one of them, and appoints him his heir, after having passed over the other son, the question arises what rule should be followed in this instance, and whether the grandson should obtain merely the share of his father, or a full share of the inheritance. I answered that where a grandson is given in adoption and appointed an heir, as long as his father is under the control of another, or is emancipated, he cannot obtain praetorian possession in opposition to the terms of the will. If, however, his father should die before obtaining praetorian possession of the estate, the grandson will not be permitted to claim it.

(2) If a father, after having passed over an emancipated son, should appoint his other two sons his heirs, one of them being still under his control, and the other given in adoption, and two grandsons by the latter belonging to the family were also passed over in the will, the emancipated son, the son who remained under his father's control, and the one given in adoption, together with his two children, can each demand possession of a third of the estate, in such a way that the last one mentioned will be entitled to a sixth, and his children to another sixth of the same.

(3) Where a father, who had two sons, emancipated one of them who himself had children, and afterwards adopted one of the grandsons whom he had previously emancipated, instead of his son, died after having passed over the emancipated son in his will, it would be but just to grant relief to the grandson who took the place of the son, and for the estate to be divided into three parts, in such a way that the son who remained under the control of his father should have one; the grandson who was adopted instead of the son, another; and the emancipated son, along with his own son who took the place of the grandson, the third. And even if the son should die and another of the grandsons be adopted in his stead, the estate must be divided into three parts, and it would be equitable for the grandson, who was adopted instead of the son, not to have less than he would have had if he had not been included among the grandsons, but a stranger had been adopted.

14. Africanus, Questions, Book IV.

If of two sons who had been emancipated one was appointed an heir, and the other was passed over in the will, and the one appointed should enter upon the estate, it is held that, although a case of this kind is not expressly referred to by the terms of the Edict, still, the son who was appointed heir cannot demand praetorian possession of the estate because he has accepted the will of his father. For the Edict does not permit an emancipated son to obtain praetorian possession if he has received the legacy, whether he received it from the appointed heir, or from those who under the Praetorian Law claim possession contrary to the provisions of the will. It must, however, be observed that the Praetor should protect the appointed heir who accepts the share of the estate left him by the will, provided he does not receive a larger share of the same than he would have been entitled to, if he had obtained praetorian possession; and it is in this respect only that he can prejudice himself. But if he was appointed heir to a small portion of the estate, he can only retain that portion, and he will be compelled to pay any legacies which may be due to foreign heirs. Where the appointed heir is under paternal control, and he becomes a necessary heir, it may be said that he can demand praetorian possession of the estate, provided he has not interfered in its affairs, for if he has, he will be considered to occupy the same position as an emancipated son, because he has approved the will of his father.

(1) A son, while a member of an adoptive family, married and had a son, and emancipated him after the death of his adoptive father. It was held that his grandson could, by a decree of the Praetor, claim possession of the property of the estate of his natural grandfather, in opposition to the will of the latter. Again, if an emancipated son, after having himself had a son, and emancipated him, should give himself to be arrogated, and die after the death of his adoptive father, there can be no doubt that, under a decree of the Praetor, he would be entitled to praetorian possession contrary to the provisions of the wills of his father and grandfather, in order to prevent him from otherwise being excluded from the estate of both of them.

15. Marciamis, Rules, Book V.

Where an emancipated son is passed over in a will, I do not think that he can claim praetorian possession of the estate in opposition to the terms of the will, if the appointed heir should interpose an exception on the ground of fraud, based on a debt which he owed his father; for, in this instance, he has, as it were, abandoned the right to claim praetorian possession of the estate. This, however, must be understood to be applicable where the son was not willing to bar the heir claiming the debt, by means of the exception, "If possession of the estate contrary to the provisions of the will cannot be granted to the son," but prefers to avail himself of an exception on the ground of bad faith.

16. Pomponius, On Sabinus, Book IV.

If an emancipated son should leave his son under the control of the grandfather of the latter, and charge a foreign heir under a trust to transfer his estate to him, if he should be released from the control of his grandfather, possession of the estate ought not to be given to the grandfather by the Praetorian Law, if there was reason to think that he would waste the property of the grandson.

17. Ulpianus, On Sabinus, Book XXXV.

If a father should give himself in adoption, and his son should not follow him on account of his having been previously emancipated, the son will not be permitted to demand praetorian possession of his father's estate, because the latter belonged to one family and the son is a member of another. This opinion was also adopted by Julianus. Marcellus, however, says that it seems to him to be unjust that the son should be excluded from praetorian possession of the estate, for the reason that his father gave himself in adoption, for when a son does not give himself in adoption and his father does, this leaves the son without any father; which opinion is not unreasonable.

18. Hermogenianus, Epitomes of Law, Book III.

Where, however, a son is disinherited under a condition, and demands praetorian possession of the estate contrary to the provisions of the will, even though he may have been appointed heir under a condition, he shall be excluded from possession of the estate; for children are deprived of the estates of their parents in consequence of a positive resolution.

(1) The retention of a legacy and of a donation mortis causa, as well as the execution of a trust is refused to one who has obtained praetorian possession of an estate in opposition to the terms of the will; and it makes no difference whether the bequest was acquired directly, or by the intervention of another.

19. Tryphoninus, Disputations, Book XV.

When it is said that praetorian possession of an estate contrary to the provisions of the will is granted to children, this should be understood to mean that it is sufficient that there was a will at the time of the death of their father, under which they could either accept the estate, or demand possession of it under the Praetorian Edict; although neither of these things was done, or could have been done afterwards. For if all the appointed heirs and their substitutes should die before the testator, and an heir should be appointed who was not capable of taking under the will, it would be useless to claim possession contrary to the provisions of the will, which would be absolutely without effect.

20. The Same, Disputations, Book XIX.

A testator disinherited his son, who was under his control, and passed over another whom he had emancipated. The question arose under what circumstances the emancipated son would be entitled to praetorian possession of the estate. I answered that if the foreign heirs who were appointed should accept the estate, the son who remained under the control of his father would be excluded. If, however, the said heirs should reject it, which they could easily do, as they could obtain nothing from it on account of him who was entitled to praetorian possession contrary to the provisions of the will, and because the son who had remained under the control of his father, having become his own master, would be the heir-at-law of his father; still, the emancipated son, having demanded praetorian possession in opposition to the terms of the will, would alone be entitled to it. But, as disinheritance is of no force or effect, where an estate is not accepted under the will, Julianus very properly holds that this should not prevent the disinherited son from acquiring praetorian possession of the estate of his father contrary to the provisions of the will. In order to prevent a will, void in every other respect, from seeming to be effective solely so far as the reproach of disinheritance is concerned, the matter is referred to the death of the intestate, so that the Praetor may protect the emancipated son against the direct and sole heir-at-law, and secure for him half of the inheritance. Therefore the benefit to be obtained from the appointed foreign heir is purchaseable, and as he can legally obtain nothing of the estate, by entering upon the same he can exclude the son remaining under parental control, and by law will transfer it in its entirety to the emancipated son, in opposition to the terms of the will. If, however, the appointed heir should reject the estate, he will render the disinherited heir, who now becomes the sole heir, entitled to his share of the same. For, just as the Praetor protects the emancipated heir when an estate is not entered upon, so the son who remained under his father's control should not be absolutely excluded in case the estate should be accepted; but he will be permitted to claim it, as against the emancipated son, on the ground that the will is inofficious.

(1) Let us see, however, where both heirs obtain the estate of their father, whether the one who has been emancipated is subject to contribution to the other, as he is not obliged to do this by the terms of the Section of the Edict under which he obtains praetorian possession in opposition to the terms of the will, since it directs security for contribution to be furnished by the emancipated heir, to those to whom possession of the estate is given. For the heir who is under the control of his father is not called to the praetorian possession of the estate contrary to the provisions of the will, because he was expressly disinherited. Nor is contribution required by that Section of the Edict under which the emancipated son is permitted to obtain praetorian possession after his father has died intestate, for the reason that although his brother may be the heir-at-law; still, the emancipated son does not obtain praetorian possession of the estate on account of the above mentioned Section. I fear that the act of the appointed heir, who rejects the estate, will not be of any benefit to the son, except to enable him to obtain half of the estate of his father; but by it he will not acquire half of the property of the son who was emancipated. In a case of this kind the result will be that, if the heir who is under the control of his father is appointed to a smaller share than he would otherwise have been entitled to, and if his emancipated brother has obtained praetorian possession of the estate, although contribution is indicated by the words of the Edict, still by the decision of the Praetor this advantage will be denied him. There is, however, much more reason that he should not be benefited by contribution, because, having been disinherited by his father, he is not called to the praetorian possession of the estate in opposition to the terms of the will; and on account of the rejection of the estate by the appointed heir, he will not be entitled to anything, because the emancipated son, having obtained possession contrary to the provisions of the will from the Praetor, occupies the position of the proper heir.

(2) The said emancipated son will be compelled to pay out of his share any legacies bequeathed to children, and ascendants of the deceased, not all of them, but only half; because of what remains of the inheritance for the son under paternal control. There is, however, no cause for the legatees to bring suit against him, since he is rightfully the heir at law. But where he received praetorian possession of the estate in opposition to the terms of the will, even if the estate should not be accepted by the appointed heir, he must pay the legacies granted by that part of the will in opposition to which he obtained possession of the estate. Therefore, in this instance, the condition of the son who remains under paternal control will, in fact, be better than if he had not been disinherited.

21. Modestinus, Pandects, Book VI.

Where a man has a son, and by him a grandson under his control, and gives his son in adoption, but retains his grandson under his authority, and his son, having subsequently been emancipated by his adoptive father, dies, after appointing foreign heirs, the son of the one who remained under the control of his grandfather can demand praetorian possession of the estate of his father, although he may never have been under his control. Hence it is held that it is not indispensable for him to have been under his control; for if it is decided otherwise, and the son should not be emancipated, the grandson of him who remained under the control of his grandfather can demand praetorian possession of the estate contrary to the provisions of the will.

(1) The same rule of law applies where a son, having been emancipated, a grandson by him remains under the control of his grandfather, and is afterwards given in adoption to his father; that is to say, he can demand praetorian possession of the estate of his grandfather in opposition to the terms of his will, because by this adoption he does not become a member of another family.

(2) If, however, my emancipated son should adopt a stranger as his son, the said adoptive son cannot demand praetorian possession of my estate contrary to the provisions of my will, for the reason that he never sustained the relation of grandson to me.

 

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Tit. 5. Concerning the payment of legacies where praetorian possession of an estate is obtained contrary to the provisions of the will.

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1. 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.

(1) The Praetor 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 Praetor 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.

(2) We 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.

(3) Legacies bequeathed to posthumous descendants shall also be paid.

2. Julianus, Digest, Book XXIII.

Therefore, if a son should be emancipated while his wife was pregnant, and receive praetorian possession of an estate in opposition to the terms of the will, he will be obliged to pay a legacy bequeathed to the grandson.

3. 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.

(1) The Praetor, however, had in mind only descendants and ascendants, for he does not include a legacy left to a brother or a sister.

(2) Moreover, 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.

(3) Where, 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.

(4) Likewise, 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.

(5) If 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.

(6) Moreover, 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 Praetor ought not to refuse him an action to recover it.

(7) Again, only those legacies which are legally bequeathed should be paid by the persons who obtain praetorian possession of the estate contrary to the provisions of the will. Hence it is true that they are not payable where a son obtains praetorian possession in opposition to the terms of the will.

4. Julianus, Digest, Book XXIII.

On this account it frequently happens that heirs who have been appointed reject the estate, because they know that an emancipated son has either demanded, or is about to demand, possession contrary to the provisions of the will.

5. 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 praetorian 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.

(1) If 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.

(2) The Praetor, 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 praetorian possession. Hence a child should determine whether he prefers to demand praetorian 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 praetorian possession contrary to the provisions of the will; which is our present practice.

(3) Where anyone obtains praetorian 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 Praetorian Law, or by that authorized by the Carbonian Edict.

(4) Again, a legacy may be refused not only if a person has obtained praetorian 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 praetorian 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.

(5) Where 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.

(6) If, 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.

(7) Moreover, 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.

(8) Shall 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 praetorian possession in opposition to the terms of a will is where they should not be paid to legatees who are either descendants or ascendants.

6. Julianus, Digest, Book XXIII.

Salvius Aristo to Julianus, Greeting. A certain man had an emancipated son, and, having passed him over in his will, he appointed his father and a stranger his heirs, and gave his father a legacy in addition. The son demanded praetorian possession of the estate in opposition to the terms of the will. I ask, if both the heirs entered upon the estate, or if either of them did, or if neither of them should have done so, whether the legacy would be payable to the father, and if so, how much of it he would be entitled to ? I answered that I have often remarked, that the Section of the Edict by which an emancipated son who has obtained praetorian possession of an estate contrary to the provisions of the will is ordered to pay legacies, bequeathed to children and parents, is somewhat defective ; for if three-fourths of an estate should be bequeathed to anyone, he to whom it was left would be entitled to more than the emancipated son. This, therefore, should be regulated by a decree in such a way that the emancipated son may have his share of the estate, and that the appointed heir will not receive more than he does; and the amount of the legacies should be regulated so that no more will be paid to anyone on this account than will remain in the hands of the emancipated son by virtue of praetorian possession of the estate.

7. Tryphoninus, Disputations, Book XVI.

For, according to a Constitution of the Divine Pius, addressed to Tuscius Fuscianus, Governor of Numidia, parents and children, who have been appointed heirs, should be protected to the amount of their full shares, just as in the case of legacies, in order that such persons may not obtain any more through their appointment as heirs than would proportionally come into the hands of one who had obtained praetorian possession of the estate contrary to the provisions of the will.

8. 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 praetorian 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 praetorian 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 praetorian 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.

(1) Where 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.

(2) If 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 praetorian 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.

(3) Where 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 praetorian possession has been obtained contrary to the provisions of the will.

(4) There is no doubt, whatever, that by the term "daughter-in-law" the wives of grandsons and others are not indicated.

(5) Moreover, 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.

(6) The Praetor 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.

9. Paulus, On the Edict, Book XLI.

An action will be granted to the woman, even though the legacy is larger than the dowry.

10. 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.

(1) Moreover, 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.

(2) He who demands praetorian 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 praetorian 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 praetorian 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 praetorian 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 praetorian 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.

11. Paulus, On the Edict, Book XLI.

Where both the appointed heir and the substitute are living at the time of the testator's death, we hold that the legacies with which the appointed heir was charged should be paid, even though no one may enter upon the estate.

12. 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.

13. Tryphoninus, Disputations, Book II.

We also hold that legacies with which a substitute is charged are payable where the appointed heir has failed to comply with a condition, which was not in his power. For if he should not comply with it when he was able to do so, he should be considered as occupying the same position as an heir who refuses to accept an estate, as he will not be entitled to any benefit from it, and deservedly so, as he did not observe the condition.

14. Ulpianus, On the Edict, Book XIV.

Sometimes a person obtains praetorian 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 praetorian 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.

(1) Where 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 praetorian possession of the estate in opposition to the terms of the will; it is better to decide that all those who have obtained praetorian possession in opposition to the terms of the will should be compelled to pay this legacy.

15. Paulus, On the Edict, Book XLI.

Where a son who is under paternal control is passed over, he will not be obliged to pay the legacies, even though he should demand possession of the estate in opposition to the terms of the will; because he will obtain the estate on the ground of intestacy, and not through having claimed praetorian possession. An exception based on fraud will not prejudice his rights; and it would be absurd for him to be compelled to pay the legacies because he demanded praetorian possession; as, without this, he would be entitled to the whole estate as heir at law. Whence, if there are two heirs who have been passed over, namely, one who has been emancipated, and the other who was still under paternal control, some authorities hold that the emancipated heir is not obliged to pay the legacies, because by the act of his brother he obtained half of the estate, when if he had not made the demand he would have been entitled to all of if. What, then, should be done when the proper heir is passed over? The rule which has just been mentioned will apply. Where, however, an heir is appointed and has the will of his father, he should be liable to the legatees, even if he fails to demand praetorian possession of the estate.

(1) But if one of the sons who was emancipated is appointed heir, and the other is passed over, and both of them obtain praetorian possession of the estate in opposition to the terms of the will, the one who was appointed heir, as well as the one who was passed over, must pay the legacies. If, however, the appointed heir is the only one who obtained praetorian possession contrary to the provisions of the will, he must pay the legacies to all the legatees, just as if he had accepted the estate. But if he should accept the estate, and the one who was passed over should obtain praetorian possession of the same, the latter must pay the legacies only to those persons who are privileged. A question arises with reference to the appointed heir, and many authorities hold that he should pay the legacies to the privileged persons. I think this opinion to be correct, since the Praetor protects him, for the reason that he is one of the children who can demand possession of the estate contrary to the provisions of the will.

(2) He must also be protected with reference to half of the estate, if he was appointed heir to a larger share than that amount, or was appointed heir to exactly one-half. Where he was appointed heir to less than half, we hold that he should be protected for no larger amount than that to which he was appointed; for how could he be entitled to more, since he did not obtain praetorian possession of the estate, and was not appointed heir to a greater portion ?

(3) No legacy shall be paid to a woman who did not bring any dowry to her husband, even though it is bequeathed under the pretext of the return of her dowry.

(4) Where a foreign heir is appointed under the condition that a legacy shall be bequeathed to a privileged person, if he should pay ten aurei to the heir, an action will be granted him to recover his legacy, if he should pay it to anyone who has obtained possession of the estate contrary to the provisions of the will, but not if he should pay it to the appointed heir; for it is absurd that he should enjoy the benefit of the estate, and that the other should sustain the burden of paying the legacy. If, however, he should be ordered to pay it to Titius, he must not pay it to him, but to his son.

16. Ulpianus, Disputations, Book IV.

If we suppose the case of two children, one of whom, being under the control of his father, was passed over in his will, and the other, having been emancipated, was appointed by him his heir, the Edict will be applicable so far as the one who is under parental control is concerned. If both of them should demand praetorian possession contrary to the provisions of the will, he who remained subject to the authority of his father will not be required to pay the legacies to the descendants and ascendants of the testator as he is entitled to the property ab intestato. But can it be said that the emancipated son should not pay them himself, because he was deprived of the estate by one who would not be compelled to pay them, if he were alone? The better opinion is that the latter should, by all means, pay the legacies to the descendants and ascendants; hence if he did not obtain praetorian possession contrary to the provisions of the will, it must be said that he should be protected with reference to half of the estate, and that he must pay the legacies to the legal representatives of the testator. I doubt whether he will be obliged to pay all the legatees; still, for the reason that he is in full enjoyment of the property of the testator, he should discharge his entire duty under the will, so far as his share of the estate is concerned.

17. Ulpianus, Digest, Book XXXVI.

Where an emancipated son was passed over in a will, and his father appointed a foreign heir, and charged him with the delivery of property which was lost through the fraud of the said heir, after the estate has been accepted, a praetorian action should be granted against the emancipated son, that is to say, in favor of the person to whom the son was obliged to pay the legacy; because the intention of the Praetor is that possession of an estate in opposition to the terms of the will should be granted without prejudicing the rights of other persons.

18. Africanus, Questions, Book IV.

A son and grandson were under the control of their father, were appointed his heirs, and the testator, in addition to this, left a legacy to the grandson. The father of the latter, another son, who had been emancipated, demanded praetorian possession of the estate, and the grandson remained content with the legacy. Certain authorities were of the opinion that an action to recover the legacy should be granted to the grandson against the son alone who remained under his father's control, because he was deprived of nothing, and the son who was emancipated obtained the share of his son, which could not be burdened with a legacy. The more just decision is that an action would lie only against the emancipated son, and, indeed, for not more than a fourth of the estate,

19. The Same, Questions, Book V.

For the reason that if all the heirs should demand praetorian possession of the estate, half of it would be divided between the grandson and his father.

20. Marcianus, Rules, Book IV.

If the emancipated son should demand praetorian possession contrary to the provisions of the will, it is established that the descendants and ascendants of the testator should be protected. If, however, various donations mortis causa should have been made to privileged persons by the testator, they must contribute pro rata to the share of the emancipated son, just as happens in the case of the division of an estate and legacies.

(1) Where, however, a father dies intestate, his son cannot complain of donations mortis causa, as no contribution of legacies takes place.

21. Papinianus, Questions, Book XIII.

If the portion of an estate to which a privileged person is entitled through the benefit of the law is rejected, the son who has received praetorian possession will profit by that share, but he shall not pay the legacies to anyone else than to privileged persons.

22. The Same, Opinions, Book V.

Where praetorian possession of the estate contrary to the provisions of the will is given to an emancipated son, who has been passed over, the other son, that is the appointed heir, who has also obtained praetorian possession, or who, having been content with what he acquires under the Civil Law, does not apply for praetorian possession, he will not be entitled to any preferred legacy which may have been left to him.

23. Hermogenianus, Epitomes of Law, Book III.

Those whom the Divine Pius stated could retain either what was left to them, or their legal shares of the estate, shall obtain nothing from slaves who have been unable to secure their freedom on account of praetorian possession given contrary to the provisions of the will.

24. Tryphoninus, Disputations, Book XVI.

The following question has arisen, namely: should he to whom a legacy has been bequeathed be included among the number of children, so that it can be paid to him by the son who has obtained praetorian possession of the estate in opposition to the terms of the will? It was decided that he must sustain this character at the time when the legacy begins to be payable.

25. Marcellus, Digest, Book IX.

A certain man who had emancipated his son, and retained his grandson under his control, disinherited his son, appointed his grandson his heir to a certain part of his estate, and passed over his other emancipated son in his will. It can be maintained that the grandson had a right to demand praetorian possession of the estate contrary to the provisions of the will; for praetorian possession is distributed in proportion to the share which each one would have obtained in case of intestacy, if the father had not been a proper heir.

(1) A testator, whose son had been adopted, appointed as his heir his grandson, whom his son had subsequently begotten, and passed over the emancipated son. Will the said grandson be entitled to praetorian possession of the estate under the Edict? He ought, nevertheless, to be protected, just as ascendants and descendants are to whom legacies must be paid by those who have obtained praetorian possession in opposition to the terms of the will.

(2) If the testator had retained under his control one or more grandsons by his said son, there is no doubt whatever that he or they should be protected to the same extent, as would have been the case if the grandson by his son, or the mother of the deceased, had been appointed heirs, for he can be compared to them.

 

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Tit. 6. Concerning the collation of property.

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1. Ulpianus, On the Edict, Book XL.

The subject of this Title manifestly is an equitable one; for the Praetor 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.

(1) Collation affects all those to whom praetorian possession has been given.

(2) It is clear that if the Praetor 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.

(3) If 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 praetorian 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.

(4) A 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 praetorian 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.

(5) Therefore, 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.

(6) Moreover, 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.

(7) If he received half of the estate as a legacy, or as much as he could by praetorian possession contrary to the provisions of the will, it must be said that he cannot be subjected to collation.

(8) Julianus, in the same place, says that if after praetorian 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 praetorian possession of the estate, he says that the Praetor 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 praetorian possession does not take effect.

(9) Again, the Praetor 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.

(10) If 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.

(11) Moreover, although a bond is mentioned in the Edict of the Praetor, 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.

(12) But 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.

(13) If 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.

(14) A 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 praetorian possession contrary to the provisions of the will. It is evident that if his adoptive father should emancipate him before he claims praetorian 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.

(15) Neither 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.

(16) But 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.

(17) Where 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 praetorian 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.

(18) If 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.

(19) If 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.

(20) If 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.

(21) Where 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 praetorian 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.

(22) Where 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 Praetorian 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.

(23) Moreover, 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.

(24) Collation 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.

(25) 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.

2. Ulpianus, On the Edict, Book XLI.

When we say that a grandson, born after the death of his grandfather, can obtain praetorian possession of the estate of the latter, in the name of an emancipated son, it will be necessary to hold that his property will be subject to collation; although it cannot be said that he who had not yet been born had the property at the time of his grandfather's death. Therefore, he must place the property in the mass of the estate, whether he received all of it from his father, or merely a legacy.

(1) The property of a son is understood to mean what he has left after deducting his debts. If, however, he owes a sum of money under a condition, it should not immediately be deducted, but it still ought to be placed in the mass of the estate. On the other hand, a son who is under the control of his father should give him security that, if the condition is fulfilled, he will protect him with reference to that portion of which he has made collation.

(2) Where property has been lost after the death of the father without the emancipated son being to blame, the question arises, who shall suffer the loss? Many authorities hold that property which has been lost without fraud or negligence should not be subjected to the burden of collation; and this is understood from the words with which the Praetor orders the property to be subjected to collation, in accordance with the judgment of a reliable citizen; for a reliable citizen would not decide that property is liable to collation which a person no longer has, and which he did not lose either through fraud or negligence.

(3) Property which, by virtue of an agreement, is due under a condition, should be placed in the mass of the estate by the emancipated son. The rule is different with reference to a conditional legacy; for, even if he should be under the control of his father, and the condition should be complied with after the death of the latter, he himself will be entitled to an action.

(4) If the emancipated son brings suit against anyone for injury committed, he need not make it the subject of collation; for a proceeding of this kind is brought rather for the gratification of revenge than for the recovery of money. If, however, he has an action growing out of theft, he should make collation of the same.

(5) Where there are three emancipated sons, and also two who are under the control of their father, Gaius Cassius, in the Seventh Book of the Civil Law, says that the emancipated sons should make collation of a third of their private property; so that, although they do not contribute to one another, they may be regarded as a single individual. They should not consider themselves ill treated if they contribute more, and receive less; because it was in their power not to apply for praetorian possession of the estate. Julianus also assents to the Opinion of Cassius.

(6) If an emancipated grandson, born to an emancipated son, after the death of both his father and his grandfather, should obtain praetorian possession of the estates of both, each having left a proper heir, the collation to be made can be explained as follows: for example, if he has property worth a hundred aurei, he should contribute fifty to his uncle, and fifty to his brother, for this ratio applies whether we take into consideration the persons themselves, or the shares of the estate to which they are entitled.

(7) Where there are two emancipated grandsons, the issue of a deceased son, who demand praetorian possession of the estate of their grandfather, the question arises whether they should contribute half, or a quarter, of their property to their uncle, by way of collation. The better opinion is that each should contribute half of his property, for if, during the lifetime of their grandfather, and while they were under his control, they had received, for instance, two hundred aurei, the son would be entitled to a hundred, and the two brothers to two hundred out of the estate of the grandfather.

(8) Where two emancipated sons demand praetorian possession of an estate, and one of them makes collation, and the other does not, the share of the latter will only benefit a son who is under paternal control, and not the one who has been emancipated, as it is on account of the one who is under paternal control that an action is denied to the other.

(9) Where an emancipated son cannot furnish security, he must not immediately be deprived of praetorian possession, but he may retain it until he can find sureties, in such a way, however, that an action can be granted to those who are under paternal control for the recovery of any property which is liable to be damaged by delay; and they must give security to place it in the mass of the estate, if they also are secured against loss.

3. Julianus, Digest, Book XXIII.

The Praetor does not promise possession of the property of an estate in opposition to the terms of the will, under the condition that collation shall be made, but he shows what must be done after possession has been given. Otherwise, great advantage would be taken of an emancipated son, if he was not understood to have obtained praetorian possession of the estate, unless he had given security to make collation; for if, in the meantime, he himself should die, he would leave nothing to his heir. Moreover, if his brother should die, he will not be permitted to obtain praetorian possession of the estate. What should be done under such circumstances? It must then be held that he obtained legal possession of the estate, even before he gave security; but if he should not give security, the result will be that the entire estate will go to the son under paternal control.

(1) An emancipated son entered into a controversy with a minor under the age of puberty, who declared that he was his brother, and was under the control of his father. I ask whether the emancipated son should make collation of his property with him. Paulus remarks on this point: "I think that collation should be made, after a bond has been required that, if the minor loses the case, he will transfer the estate as well as the property of which collation was made."

(2) Julianus: Whenever praetorian possession is given contrary to the provisions of the will, the emancipated sons should make collation of their property only with those who remain under the control of their father. The question arises how this can be done. For, if the property left by the father, as well as that belonging to the emancipated sons, is placed in one mass, and full shares of the same are taken, the result will be that the emancipated sons will profit by the collation made by themselves. Therefore, let us see whether it will not be more convenient for the emancipated sons to receive a fourth of their father's estate, and a third of their own property. What I mean will become more plain by an example. Let us suppose that a father left four hundred aurei, and two sons under his control, and two have been emancipated. Of these one will have a hundred and the other sixty aurei out of his estate; the one who will be entitled to a hundred will obtain in all a hundred and thirty-three and a third; and he who contributed sixty will obtain a hundred and twenty, so that the result will be that those only who remained under the control of their father will obtain the benefit of the collation.

(3) Emancipated sons are ordered to place their property in collation with those who are under the control of their father.

(4) Wherefore, as he who is under the control of his father receives the dowry of his wife as a preferred legacy, so, also, can an emancipated son retain that of his wife as a preferred legacy.

(5) Where an emancipated son, who was passed over in a will, gives security with reference to the collation of his property, while he is deliberating whether he will demand praetorian possession of the estate or not, and he does not do so, and his brother brings suit against him on the stipulation, he will be secure under the will. If, however, he has deposited money by way of collation, he can recover it by an action; for, after he has declined to apply for praetorian possession, there will be no reason for the money to remain in the hands of the heir.

(6) A man who had two sons under his control, and also a grandson who was the son of one of them, emancipated the one by whom he had the grandson; and, after having been emancipated, the son had another son whom his grandfather adopted in his stead; and then the grandfather died, either intestate, or after making a will in which his emancipated son was passed over. The question arose, what would the rule be with reference to praetorian possession, and what ought to be done with respect to collation? The answer was that, so far as the property was concerned, three parts should be made of it, one of which would belong to the son who remained under paternal control, the second to the grandson who was adopted instead of the son, and the third to the emancipated son and the grandson who remained under paternal control; so that the father would be liable to collation only with the one who had obtained praetorian possession of the estate.

4. Africanus, Questions, Book IV.

An emancipated son is not obliged to place in collation the dowry which he gave to his daughter, because it is not understood to be included in the property of the father from whom it was derived, as it is in that of the mother.

5. Ulpianus, On the Edict, Book LXXIX.

Where anyone has a son who is his own master, and by him a grandson who is under his control, it must be said that if the grandson receives praetorian possession of the estate of his emancipated father, he must give security to place his property in collation, and he is like one who has adopted the son of another; for the Divine Brothers stated in a Rescript that the grandfather was compelled to place his property in the mass of the estate. It is true that the following is added in the same Rescript: "Unless the grandfather does not desire to obtain any benefit from his property, and is ready to release his grandson from his authority, so that all the benefit of praetorian possession of the estate may be enjoyed by him after his emancipation." Hence a daughter, who was born after the emancipation of her father, and who became his heir, cannot justly complain of being excluded from the benefit of the collation by what has been done; as after her grandfather dies, she can, along with her brother, succeed to the estate. This reason cannot be advanced in the case of an adoptive father, and, still we adopt the same rule with reference to him, if he emancipated the son without committing any fraud.

(1) The stipulation referring to collation takes effect when the person called upon does not act within the time when he ought to have placed his property in the mass of the estate; especially as it is inserted in the Edict of the Praetor that collation should be made in accordance with the judgment of a good citizen.

(2) Therefore, if collation does not take place in accordance with the terms prescribed, or if it is only partially carried out, the stipulation will become operative.

(3) And, whether the son does make collation or not, according to the terms of the stipulation, or whether he avoids doing it by means of some fraudulent act, judgment shall be rendered against him for a sum equal to the value of the property.

6. Celsius, Digest, Book X.

The question arises whether the dowry given by a paternal grandfather should be returned to the father after the death of the grandfather, the woman having died during marriage. The equity of the case seems to be that what my father has given to my daughter on my account is just the same as if I had given it myself, for the duty of a grandfather towards his granddaughter depends upon the affection which a father entertains toward a son, and because the father should endow his daughter, so a grandfather should endow his granddaughter for the sake of his son. But what if the son was disinherited by his father? I hold that it would not be absurd for the same rule to be maintained in the case of a disinherited son. I think that it is not an improper opinion that the son should be entitled to what was bestowed out of his father's estate on his account.

7. The Same, Digest, Book XIII.

Where grandsons succeed to the place of sons, only one share should be contributed to them by way of collation, so that they may have one share of the estate under praetorian possession. They themselves, however, must place their property in the mass of the estate, just as if all of them only constituted one person.

8. Papinianus, Questions, Book III.

The Praetor sometimes does not exclude one who is irresolute, or reject him after he has changed his mind. Therefore, certain authorities have held that an emancipated son who refused to give security with reference to placing his property in the mass of the estate ought afterwards to be heard, if, after having furnished security, he should desire to take advantage of the benefit of the praetorian possession of the estate; although it might be said that he seemed to have rejected possession who was unwilling to observe the formalities by which it could be acquired. The former opinion, however, is the more equitable one, especially where a dispute arises among brothers with reference to their father's estate; and I think that the emancipated son should be permitted to obtain possession, if, in the time prescribed for doing so, he offers to give security; for it will be more difficult to excuse voluntary delay in giving security after the lapse of a year, within which time praetorian possession of an estate can be granted.

9. The Same, Opinions, Book V.

An emancipated son obtained praetorian possession of the estate of his intestate father. The grandson by the said son, who remained in the family, will be entitled to half of the estate, together with the benefit of collation. If the same grandson should afterwards obtain praetorian possession of the estate of his intestate father, he will be obliged to place his property in the mass of the estate by way of collation with his brother, who was born after the emancipation of his father.

10. Scaevola, Questions, Book V.

If a son under the control of his father, after having been appointed his heir, enters upon his estate, and an emancipated son demands praetorian possession of the same contrary to the provisions of the will, and he himself does not do so, no contribution by way of collation should be made for his benefit; and it is so stated in the Edict. I think, however, that just as he can legally retain the estate in proportion to his share, because he can demand praetorian possession of it, so, also, he certainly should contribute by way of collation for the benefit of his brother, as the latter suffers wrong through his obtaining praetorian possession.

11. Paulus, Opinions, Book XI.

Paulus gives it as his opinion that an emancipated son is not obliged to make collation of such property as should be transferred to him after the death of his father, for the benefit of his brother who was left under paternal control, even if he obtained the said property before he was entitled to it; as he is held to have had possession of the same after the death of his father, not so much by virtue of the donation, as on account of the debt.

12. The Same, On the Edict, Book XLI.

Where anyone leaves a wife who is pregnant, and she obtains praetorian possession in the name of her unborn child, collation is suspended for a time; for before the child was born it could not be said to have been under the control of the deceased; but after it is born, collation must be made.

 

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Tit. 7. Concerning collation of the dowry.

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1. Ulpianus, On the Edict, Book XL.

Although the Praetor 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 praetorian 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.

(1) Where 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.

(2) Where 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.

(3) Where, 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.

(4) Where 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.

(5) Where a dowry is placed in the mass of an estate, a deduction of necessary expenses, but of no others, is made.

(6) If 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.

(7) If, 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.

(8) A 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.

(9) Where an emancipated son, who has obtained praetorian 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.

2. Gaius, On the Provincial Edict, Book XIV.

A daughter who has been given in adoption and appointed heir must, in the same manner as an emancipated daughter, contribute for collation her private property, as well as the dowry which she may have received. If her adoptive father should still be living, it will be necessary for him to make the collation.

3. Ulpianus, Disputations, Book IV.

If a daughter should be appointed heir, she will not be required to place her dowry in the mass of the estate. Therefore, if another child has taken advantage of the Edict, she also must obtain possession of the estate in opposition to the terms of the will, for since she commits no wrong against her brother, she need not contribute her dowry, as what she obtained by the will is changed into what she would obtain through praetorian possession of the estate, contrary to its provisions. It is clear that, if she was appointed heir to a smaller portion of the estate than her legal share, and she obtained something else through the praetorian possession, as her share is increased thereby, she will be obliged to contribute for collation, unless she remains content with the share which was left her. For then it must be held that she will not be obliged to perform the duty of collation, as she acquired the property by the will of her father.

4. Pomponius, On Quintus Mucius, Book III.

Where a father promised a dowry for his daughter whom he afterwards disinherited, or if he bequeathed her a legacy after she had been emancipated, and passed her over in his will, she will be entitled to the dowry as a preferred legacy, as well as to the legacy.

5. Papinianus, Opinions, Book V.

An emancipated son, who could have obtained praetorian possession contrary to the provisions of the will, acquired possession of the estate of his father, under the Edict, on the ground of intestacy. A daughter also, who remained under parental control, having been appointed heir along with a brother of the same family, repeated the error of her emancipated brother, and obtained possession under the Edict on the ground of intestacy. She will not be obliged to contribute her dowry by way of collation for the benefit of her brother, who was appointed heir; as the praetorian possession which she claimed was of no force or effect, and she will retain her entire share of the estate under the will of her father; that is to say, each of the three children will have a third, and it will be presumed that the praetorian possession of the estate contrary to the provisions of the will, designated unde liberi, was demanded.

(1) A daughter, who was obliged to contribute her dowry after the dissolution of her marriage, delayed doing so. She will be obliged to pay interest on the dowry in accordance with the judgment of a good citizen, since her emancipated brother must also place his income in collation, and she has received the income of her share.

6. The Same, Opinions, Book VI.

A father appointed his emancipated son his heir, and disinherited his daughter, who, having brought an action to declare the will inofficious, recovered half of the estate. I gave it as my opinion that her brother should not be compelled to place his own property in the mass of the estate; for it has been established that under such circumstances even bequests of freedom are valid.

7. Paulus, Opinions, Book XI.

Nor shall she contribute her dowry for the benefit of her brothers, as the latter are heirs under a different right than hers.

8. Papinians, Opinions, Book XI.

A father gave his daughter, at the time of her marriage, certain property in addition to her dowry, retained her under his control, and appointed her co-heir with her brothers, subject to the condition that she would contribute her dowry, and any other property which he had given her when she was married, by way of collation. As the daughter did not accept the estate, it was held that she could interpose an exception, on the ground of bad faith, against her brothers who brought an action to recover the property not included in the dowry, for the reason that her father intended that she should have one or the other of these.

9. Tryphoninus, Disputations, Book VI.

The question was raised whether a daughter who, along with her brothers, was a proper heir of her father and, being content with her dowry, refused to accept the estate, could be compelled to place it in collation. The Divine Marcus stated in a Rescript that, if she did not accept her father's estate, she could not be forced to do so. Therefore, the dowry which was given will not only remain in the hands of the husband, but also, if it has been promised it can be collected from her brothers, and is considered a debt, as it is no longer included in the estate of the father.

 

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Tit. 8. Concerning the contribution to be made between an emancipated son and his children.

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1. Ulpianus, On the Edict, Book XL.

Where anyone of those to whom the Praetor 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 Praetor, 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.

(1) This 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.

(2) The 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.

(3) Julianus 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 praetorian 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.

(4) If 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 praetorian 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 praetorian possession, when their father has either been appointed an heir, or disinherited.

(5) If 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 praetorian possession, as their father, having been disinherited, is considered as dead.

(6) Scaevola 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 Praetor 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.

(7) The Praetor 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.

(8) If a grandson should return under the law of postliminium, it must be held that he should be joined with his emancipated father.

(9) If 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.

(10) It 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.

(11) The 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.

(12) Where 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.

(13) If 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 Praetor 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 praetorian possession of the estate he prejudices only the rights of his children.

(14) Now 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 praetorian 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.

(15) Hence, 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 praetorian possession of the estate.

(16) Scaevola 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.

(17) Even 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.

(18) 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.

2. Paulus, On the Edict, Book XLI.

In this section of the Edict the Praetor makes no provision with reference to legacies which the grandson shall pay to privileged persons. What has previously been said on this point is applicable here, for it is absurd that the father of the grandson should be obliged to pay such legacies, and that the grandson should have more, where, under the same circumstances, he is called to the same share under the Praetorian Law.

3. Marcellus, Digest, Book IX.

A father who had two sons emancipated one of them, and retained his grandson by the latter under his control. The emancipated son himself had a son, who was disinherited by his father. I ask, if his brother and the emancipated son himself should be passed over in the will, and the grandsons of the emancipated son be appointed by the grandfather heirs to his estate, what would be the rule, in case of praetorian possession, and what difference would it make if we suppose that the emancipated son, from whom the grandsons were descended, should also be passed over in the will? I answered that if the testator should have emancipated his son, and retained the grandson by the latter under his control, and the emancipated son should have a son, and both grandsons should be appointed heirs, and their father be disinherited, and the other son passed over, the latter alone could demand praetorian possession in opposition to the terms of the will; for the disinherited son is an impediment in the way of his own children born after emancipation. Praetorian possession should, however, be granted to the grandson remaining under the control of his grandfather; as, if his father, who had been emancipated, should be passed over in the will, he can obtain praetorian possession of the estate under that Section of the Edict which was introduced by Julianus; that is to say, under the new clause. Nor would he be in worse condition because his father was disinherited, and he must be shown the same consideration if he himself had been passed over in the will. The condition of his brother, however, who was born after emancipation, is different; for the estate must be preserved for his benefit, so far as his entire share is concerned, as the Emperor Antoninus stated in a Rescript with reference to a granddaughter, the child of the daughter of the testator.

4. Modestinus, Pandects, Book XVI.

A certain man, having emancipated his son, retained the children of the latter under his control. The emancipated son, having had children, afterwards died. It was decided that those grandchildren who remained under the control of their grandfather, were, by virtue of a special decree, entitled to praetorian possession of the estate of the latter, together with those who were born after the emancipation, with the exception that, if the grandfather desired to obtain the estate of his son, by means of his grandchildren, he could place his property in collation, or he could emancipate them, in order that they might obtain for themselves the benefit of their father's estate. This the Divine Marcus stated in a Rescript.

5. The Same, Differences, Book VI.

If the disinherited grandson should become the heir of him whom the grandfather appointed his heir, and then his emancipated father, who had been passed over in the will, should obtain praetorian possession of the estate of his father contrary to the provisions of the will, the grandson could not be joined with his father, but would be excluded as a stranger, because he is not the heir of his grandfather in his own right.

6. Scaevola, Questions, Book V.

Where anyone who has a son under his control adopts a stranger in the place of his grandson, just as if he had been born to his son, and afterwards emancipated his son, the grandson will not be joined with the emancipated son in the praetorian possession, because he has ceased to be included among the children of the latter.

7. Tryphoninus, Disputations, Book XVI.

If a testator, after the emancipation of his son, has a grandson by the latter, his share of the estate of his grandfather must be preserved for him. Let us, however, see how much this will amount to. For suppose that the grandson was appointed co-heir with his uncle, and that the father of the said grandson, having been passed over in the will, should obtain praetorian possession contrary to the testamentary provisions, in accordance with the terms of the Praetorian Edict, the property of the estate would be divided into two parts. Now, however, after the Constitution of the Divine Pius has been promulgated, must that to which the grandson is entitled be his entire share, or merely a fourth? For if, after his birth, he had been under the control of his grandfather, he will be joined with his father, and both together will be entitled to half of the estate. Let us suppose that there was another grandson, descended from the same son, and belonging to the family of the grandfather, the two grandsons together would be entitled to a fourth of the estate, if their father had obtained praetorian possession in opposition to the terms of the will, and they had been under the control of their grandfather. Must he who had not been retained in the family now be permitted to receive an eighth of the estate? And who must be deprived of his share to obtain what is given him ? Would it be taken only from his father, or from his uncle as well? I think it would only be taken from his uncle, for he would be compelled to pay the legacy bequeathed to the said grandson.

 

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Tit. 9. Concerning the placing of an unborn child in possession of an estate, and his curator.

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1. Ulpiamis, On the Edict, Book XLI.

The Praetor 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 praetorian possession contrary to the terms of the will.

(1) It 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.

(2) An 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.

(3) Therefore, 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.

(4) The same rule will apply if the woman who was in possession of the estate should have a miscarriage.

(5) If, 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.

(6) Where 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.

(7) On 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.

(8) Where 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.

(9) If, 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 Praetor should always be very indulgent, in order that the child whose birth is expected may not die before it is born.

(10) Again, the Praetor 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.

(11) The 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.

(12) If 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, praetorian 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 praetorian possession in opposition to the terms of the will.

(13) If 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.

(14) Where 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 praetor will render a decree, as under the Carbonian Edict. This the Divine Hadrian stated in a Rescript addressed to the Praetor, 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 Praetor; 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.

(15) Generally speaking, we do not doubt that the Praetor 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.

(16) If 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.

(17) Moreover, 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.

(18) The 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.

(19) Moreover, 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.

(20) The 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.

(21) Again, 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.

(22) Therefore he must discharge the duties of his office just as the curators and guardians of wards are accustomed to do.

(23) A 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.

(24) If 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.

(25) He 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.

(26) I 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.

(27) The 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.

(28) If 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.

2. Paulus, On the Edict, Book XLI.

If she should have a child that has been excluded from the estate, she must withdraw.

3. Hermogenianus, Epitomes of La/w, Book III.

Where any expense has been incurred by her in good faith, it should not be recovered from her.

4. Paulus, On the Edict, Book XLI.

A lodging, also, must be rented for the woman, if the deceased did not have a house.

(1) The slaves of the woman likewise must be provided with subsistence – where they are necessary for her service – in accordance with her social rank.

5. Gaius, On the Provincial Edict, Book XIV.

The curator of the unborn child should also provide the woman with maintenance; for it makes no difference whether she has a dowry by means of which she can support herself, or not, because what is furnished her is considered to have been given for her unborn child.

(1) Where a curator is appointed for an unborn child, he should take care to pay the debts of the estate, especially those whose non-payment involve pecuniary penalties, or where valuable pledges have been deposited as security.

6. 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.

7. The Same, On the Edict, Book XLI.

Whenever anyone becomes an heir ab intestato, in this instance also, an unborn child is permitted to obtain possession of the estate; that is to say, if it is such a child that when it is born, it will be entitled to praetorian possession; and in all the Sections of the Edict an unborn child is considered as a survivor.

(1) Sometimes, but not indiscriminately, an unborn child should not be placed in possession of the estate; but only after proper cause is shown, where anyone contests its right. This, however, merely has reference to an unborn child who, with other children of the deceased, can obtain possession. But if it should be placed in possession as the next of kin, or under any other Section of the Edict, it must be said that an investigation will not be necessary; for it is not just that the child should be supported by the property of another until it arrives at puberty, because the settlement of the controversy should be deferred until that time. It is established that all controversies relating to the condition of children must be postponed until they arrive at puberty; not that the child can remain in possession during the existence of the disputes, but that the delay should be without possession.

(2) Moreover, although the Praetor can place the unborn child in possession of the estate, along with those to whom he has already granted it; still, the unborn child alone may be permitted to hold possession of the property.

8. Paulus, On Adultery, Book I.

Where a woman is placed in possession of an estate in the name of her unborn child, the Divine Hadrian stated in a Rescript addressed to Calpurnius Flaccus that an accusation of adultery should be postponed, in order that no wrong may be done to the child.

9. Ulpianus, On Sabinus, Book XV.

Where an unborn child is placed in possession of an estate, what is taken from the estate for its support should be deducted as a debt.

10. Paulus, Questions, Book VII.

A posthumous child, no matter when it may be born, provided it was conceived at the time of the death of the testator, can obtain praetorian possession of the estate, for the Praetor places it in possession under all the Sections of the Edict by which it may obtain it, but it will not be placed in possession, if, after its birth, it is not entitled to it.

 

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Tit. 10. Concerning the Carbonian Edict.

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1. 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.

(1) If security for the minor is not given to him who raises the question, the Praetor orders him to be placed in possession of the estate along with the minor.

(2) Not only males, but also females descendants from males, are entitled to the benefit of the Carbonian Edict.

(3) In general, we say that those are entitled to the benefit of the Carbonian Edict who can obtain praetorian 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.

(4) If 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.

(5) If 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.

(6) The same rule will apply, even where the deceased himself is said to have been a slave.

(7) There 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.

(8) Pomponius, 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 praetorian possession should only be given to him in proportion to the share of the estate to which he was appointed heir.

(9) He 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.

(10) If 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.

(11) If 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.

2. Marcianus, Institutes, Book XIV.

Although the woman who is said to have introduced a supposititious child may be dead, still, if there are any others implicated in the crime, an investigation should take place at once. When, however, there is no one who can be punished, because all those who participated in the offence are dead, the investigation must be deferred until the time of puberty, in accordance with the Carbonian Edict.

3. Ulpianus, On the Edict, Book XIV.

The Carbonian Edict is applicable to the praetorian 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 praetorian 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.

(1) Where 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.

(2) Although it is certain that praetorian 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.

(3) The 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 praetorian 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.

(4) In 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 Praetor 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.

(5) Two causes exist for this investigation: one of them is to determine whether Carbonian possession which confers the advantage of enabling the minor to obtain praetorian 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 Praetor 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 Praetor 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."

(6) If 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.

(7) If 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.

(8) Julianus 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.

(9) It 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.

(10) Where 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.

(11) Where 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.

(12) Where 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.

(13) The Praetors 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 Praetor 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.

(14) Moreover, this possession is granted within the year, just as ordinary ones which are given to children.

(15) It 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 praetorian possession.

(16) The periods necessary for obtaining both possessions run separately. The one which has for its object ordinary praetorian possession runs from the time when the son knew that his father was dead, and had the power to demand praetorian possession of the estate; and that of Carbonian possession runs from the time when the son knew that his condition was disputed.

4. Julianus, Digest, Book XX.

Therefore, if a child does not demand possession of the estate under the First Section, he can, in some instances, obtain possession under the following Section of the Carbonian Edict, and sometimes he cannot do so; for if a controversy should arise immediately after the death of the father as to whether he could demand possession of the estate with the other children, the year will be considered to have expired at the same time, so far as both periods are concerned. If, however, after a certain term has elapsed, he should ascertain that his rights were disputed, he can, even if the time has expired during which he could have demanded possession of the estate under the First Section of the Edict, demand it under the Second Section; and when he has obtained it, he can always avail himself of the possessory actions. But where judgment has been rendered against him after he has reached puberty, the actions will be refused him.

5. 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.

(1) If 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.

(2) Whenever 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.

(3) Moreover, 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.

(4) I think that it should, by all means, be asked of the Praetor 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.

(5) When 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.

6. Paulus, On the Edict, Book XLI.

The question arises, can a decree be rendered with reference to the property of a mother? And, in fact, a decree cannot be rendered in this instance, under the Carbonian Edict; for a long delay should be granted which will defer the decision until the age of puberty.

(1) Julianus says it is clear that if a controversy arises with reference to the estates of the father and mother, at the same time, or even with reference to that of a brother, the decision of the controversy must be postponed until the time of puberty.

(2) There will be ground for the application of this Edict, even if the children should obtain praetorian possession ab intestato; even when they demand it under the last Sections of the Edict, where heirs at law are called to the succession as they are proper heirs, or under that Section by which possession is granted to cognates.

(3) This Edict also applies where a controversy exists both with reference to the status of the minor, and his right to the estate; for if only his status is involved, as, for instance, where he is said to be a slave, and there is no dispute as to the estate, under such circumstances the question of his freedom should be immediately determined.

(4) If he who raises a controversy concerning the minor is placed in possession with him at the same time, he should not be supported out of the property of the deceased, nor can he take anything from the estate, for this possession is only given him in lieu of security.

(5) Not only should support be furnished the minor, but also money for his education, and all other necessary expenses should be paid in accordance with the amount of the estate.

(6) The question arises whether he who has been placed in possession under the Carbonian Edict can, after he arrives at puberty, take the part of plaintiff in court. It has been established that he can take the part of defendant, especially if he gives security. Where he does not give security, and is not prepared to do so, suit can be brought against him as the possessor of the estate. If he does not then furnish security, possession will be transferred to his adversary, provided that he banishes it; just as if the estate had been, from that moment, claimed by him for the first time.

7. Julianus, Digest, Book XXIV.

If it is denied that a minor has been legally adopted, and for that reason his right to the estate of his father is disputed, it will not be unjust for a decree similar to those issued under the Carbonian Edict to be rendered.

(1) Likewise, where a minor, under the age of puberty, is said to have been given in adoption, and hence his right to the estate of his natural father is denied, since in this case the question arises whether he is entitled to the estate as a son, there will be ground for the application of the Carbonian Edict.

(2) If, however, we suppose that the son is disinherited, it will not be necessary to postpone the decision of the controversy until the age of puberty, because the question does not involve the right of the son himself, but the validity of the will.

(3) If the mother of the person whose freedom and claim to the estate of his father are in dispute is called into court to testify in a suit brought to establish his freedom, the decision with reference to his mother should not always be deferred to the time of puberty; for there are instances where the cases of those who are said to be supposititious children are determined without delay.

(4) Whenever a decree is rendered under the Carbonian Edict, the matter is considered to be in the same condition in which it would have been if no controversy had arisen with reference to the person who obtained praetorian possession of the estate.

(5) Again, where two brothers have been placed in possession under this decree, and one of them refuses to defend his share of his father's estate, the other will be compelled to defend the whole of it, or abandon it all to the creditors.

(6) Sometimes, a disinherited son obtains possession of the estate under the Carbonian Edict, where he does not demand praetorian possession contrary to the provisions of the will, but, on the ground of intestacy, which is granted to children; because he denies that his father's will is such that praetorian possession can be given under it, as it is alleged that he is not his son.

(7) If a minor demands possession of the estate of a freedman of his father, and it is denied that he is the son of the patron, for the reason that there is no dispute with reference to the estate of his father, the determination of the controversy should not be postponed. If, however, this controversy should arise after a decree under the Carbonian Edict had been rendered, its determination should be deferred until the time of puberty.

(8) The question arose whether a minor could have possession under the Carbonian Edict at the same time with the appointed heirs, who obtained it in accordance with the terms of the will. I answered that if he should not be the son, or had not obtained praetorian possession of the estate contrary to the provisions of the will, on the ground of intestacy, he could obtain it under the Carbonian Edict, at the same time that the appointed heirs acquired praetorian possession of the estate in accordance with the provisions of the will.

8. Africanus, Questions, Book IV.

The person whom I declare to be my son, and under my control, died. A minor, under the age of puberty, appeared, who alleged that the deceased was the father of a family, and that the estate belonged to him. It was held that the decree should be rendered.

(1) Again, my emancipated son died intestate, leaving a son under the age of puberty, who alleged that he was the direct heir. I maintain the latter was conceived before emancipation took place, and, for this reason, was under my control, and that the estate of the emancipated son belonged to me. It was established that this child was the son of the deceased, but a question arose as to his legal condition, that is to say, whether he was under the control of his father, or not; and there is no doubt whatever that the Carbonian Edict is applicable in this instance.

9. Neratius, Parchments, Book VI.

Labeo stated that whenever a minor is said to be supposititious, and a controversy arises with reference to his right to his father's estate, the Praetor should be careful to place him in possession of the same. I think that Labeo intended this to be applicable to a child born after the death of his father, who alleges that he was his son, even though the deceased thought that he had no children; for he who has been acknowledged by the person whose estate is in dispute has a more equitable claim to it than a posthumous child.

10. Marcellus, Digest, Book VII.

Where a woman, to whom an oath has been tendered by the heir, swears that she is pregnant, possession of the estate should be granted under the Carbonian Edict, or it should be refused if she tendered the oath to the heir; for possession should be given after proper cause has been shown to prevent the heir from being prejudiced if it should be given; or if it should be denied, to avoid depriving the minor of his legal rights.

11. Papinianus, Questions, Book XIII.

There is no ground for the application of the Carbonian Edict, where the son, whose civil condition is contested, cannot become the heir without the intervention of the Praetor; for example, if he has been appointed. The same rule applies where it is certain that he still cannot be the heir, even though he may be the son; as, for instance, if Titius was appointed heir, and a posthumous child or a disinherited minor should be denied to be the son of the testator. Nor does it make any difference what interest the minor may have in being proved to be the son, with reference to other matters, for example, in order to obtain the property of his brother by another mother; or to acquire rights over freedmen and burial places; for it is established that these cases do not come under the Carbonian Edict.

12. The Same, Questions, Book XIV.

An appointed heir, against whom a minor son who is said to be supposititious demands praetorian possession under the First Section of the Edict, as in the case of an heir at law, cannot, in the meantime, obtain possession in accordance with the provisions of the will. If, however, in the interim, either the appointed heir, or he who is entitled to possession as the heir at law, should die, relief must be granted to his heirs. For what if they had not been able to enter upon the estate, because the law prevented them from doing so, or on account of the decision of the controversy being doubtful ?

13. Paulus, Opinions, Book XI.

Titia had a posthumous child after the death of her husband, and Sempronius brought an accusation of adultery against her before the Governor of the province. I ask whether trial of the accusation of adultery should be deferred until the age of puberty, in order that the rights of the posthumous child may not be prejudiced. Paulus answered that if there was no question as to the right of the minor to the estate of her father, her guardians have no reason to defer the trial for adultery until their ward reaches the age of puberty.

14. Scaevola, Opinions, Book II.

The question arises whether a minor under puberty has obtained possession of an estate by the Carbonian Edict, and reaches that age before the possession has been transferred to him, can perform the duties of plaintiff. The answer was that he must introduce proof of any claim which he makes against the possessor.

15. Hermogenianus, Epitomes of Law, Book III.

This possession will benefit the minor if security is furnished not only to obtain actual possession, but also to recover property, to collect debts, to give dowries, and to do everything else which we have already stated is liable to contribution in collation.

16. Paulus, On the Edict, Book XLI.

Just as security is given to an emancipated son with reference to the estate of his father, so it must also be given to a minor with reference to the property which he himself places in collation.

 

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Tit. 11. Concerning praetorian possession of an estate in accordance with the provisions of the will.

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1. Ulpianus, On the Edict, Book XXXIX.

By a will we should understand any kind of material upon which it is written; therefore, whether it is written upon tablets of wood, or upon those of any other kind of material, or upon papyrus, or parchment, or upon the skin of any animal whatsoever, it is also properly designated a will.

(1) The Praetor does not, under this Section of the Edict, confirm all wills, but only the last ones; that is to say, those which were most recently made, and after which no others have been drawn up. A last will is not one which was executed at the very time of death, but one after which no other has been executed, even though it is old.

(2) It is sufficient for there to be a will, although it may not be produced, if it is certain that it does exist. Therefore, if it is in possession of a thief, or in the hands of one with whom it has been deposited for safe-keeping, there is no doubt that praetorian possession of the estate should be granted; for it is not necessary to open the will in order that praetorian possession may be obtained in accordance with its provisions.

(3) Again, it is necessary for the will to have been in existence at the time of the death of the testator, even if it may have ceased to exist afterwards, hence, where it has subsequently been destroyed praetorian possession can be demanded.

(4) Nevertheless, we require that the heir should know that the will existed, and be certain that the possession of the estate was given to him by its provisions.

(5) Where anyone makes two copies of his will, and one of them remains, and the other is destroyed, the will is considered to be in existence, and praetorian possession of the estate can be demanded.

(6) Even if the testator made two wills, and sealed them at the same time, and appointed different heirs by each one, and both are in existence; possession of the estate can be obtained under both, because they are considered as one document and the last will of the testator.

(7) If, however, a testator should execute a will, and also a copy of the same, and if the one which he intended to be his will is in existence, praetorian possession of the estate can be demanded; but Pomponius says that if only the copy is in existence, possession of the estate cannot be claimed.

(8) For possession to be given of an estate of anyone, the Praetor requires that he should have the right of testation, not only when he made the will, but also at the time of his death; hence, if a minor under the age of puberty, or an insane person, or anyone else of those who have not testamentary capacity should make a will and afterwards became competent to do so, and die, praetorian possession of his estate cannot be demanded. If, however, a son under paternal control, thinking that he was the head of a household when he was not, should make a will, and afterwards be found to be his own master at the time of his death, possession of his estate in accordance with the provisions of the will cannot be claimed under the terms of the Praetorian Edict. But if a son under paternal control, who was a veteran, should make a will disposing of his castrense peculium, and afterwards be emancipated, or become the head of a family and then die, praetorian possession of his estate can be demanded. If anyone should have the power to make a will at both the times above mentioned, but should not have that power in the interval, praetorian possession of his estate can be claimed in accordance with the provisions of his will.

(9) Moreover, if anyone should make a will, and afterwards be deprived of testamentary capacity either through becoming insane, or for the reason that he was forbidden to manage his property, possession of his estate can be demanded under the Edict, because his will is valid in law. Generally speaking, this may be said of all persons of this kind who have lost the power to make a will at the time of their death; but their wills executed before that time are valid.

(10) Where the cord which binds the tablets of the will together is cut, even though this was done against the wish of the testator, praetorian possession of the estate can be demanded. If, however, the testator himself should cut it, the will is not considered to have been sealed, and therefore possession of the estate cannot be claimed.

(11) If the tablets on which the will is written should be gnawed by mice, or the cord be broken in some other way, either through being decayed by age, or by the dampness of the place where it was deposited, or by a fall, the will is considered to have been sealed; especially if you suppose that it is fastened with only one cord. If a cord is wound three or four times around the tablets, it must be held that they are sealed, even though it may be cut or gnawed in one place.

2. The Same, On the Edict, Book XLI.

The Praetor 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 Praetorian Edict will revert to the appointed heirs.

(1) Where 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 Praetor 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.

(2) Each 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 praetorian possession of the estate, possession of the share of his co-heir shall not be granted the latter.

(3) Where 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 praetorian 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.

(4) Praetorian 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 praetorian possession.

(5) If 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 praetorian possession of the estate.

(6) If 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 praetorian possession before the condition has been complied with.

(7) If the name of the heir has been designedly erased, it is settled beyond a doubt that he cannot demand praetorian 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.

(8) Where 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 praetorian possession of the same, possession of it will revert to the first; nor will it be necessary for him to demand praetorian possession, for it will accrue to him by operation of law, as praetorian possession accrues to an appointed heir in the same manner as his share of the estate.

(9) Where a slave is appointed an heir, praetorian possession of the estate is given to his master to whom the estate will belong; for praetorian 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, praetorian 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 praetorian possession of the estate to the last of them.

3. Paulus, On the Edict, Book XLI.

It is true that every posthumous child who was unborn at the time of the death of the testator can demand praetorian possession of the estate after his birth.

4. Ulpianus, On the Edict, Book XLII.

The term "papyrus" applies not only to such as is new, but also to that which has been already used. Hence, if anyone should draw up his will upon a sheet the back of which is already written on, praetorian possession of property based on such a will can be obtained.

5. The Same, Disputations, Book IV.

Where anyone is appointed an heir under a condition, and after he has obtained praetorian possession in accordance with the terms of the will, the condition is not fulfilled, the result will be that the property in the meantime will remain in the hands of the possessor; as, for instance, where an emancipated son is appointed an heir conditionally. For, if the condition should fail to be fulfilled, Julianus says that he can, nevertheless, obtain praetorian possession in accordance with the terms of the will; but he also says that he should be protected if he is one who can obtain praetorian possession of the estate as heir at law. This is our present practice.

(1) Let us see whether legacies must be paid by these heirs. The son, indeed, who has obtained possession, as it were, contrary to the [provisions of the will, is considered to hold the estate by virtue of his appointment, but the others hold it as heirs at law; therefore the son is only compelled to pay the legacies left to descendants and ascendants, but not those left to others. It is evident that a trust must be executed for the benefit of him who was entitled to it as heir-at-law; as otherwise it would seem that praetorian possession under the terms of the will had been claimed for the purpose of defrauding him.

6. The Same, Disputations, Book VIII.

Those who have been appointed heirs conditionally can demand praetorian possession in accordance with the terms of the will, even while the condition is pending, and has not yet been fulfilled, provided they have been legally appointed; for where anyone has been illegally appointed, his nomination will be of no advantage to him in obtaining praetorian possession of the estate.

7. Julianus, Digest, Book XXIII.

When the tablets of the will were sealed in several places, and some of the seals are broken but seven still remain, this will be sufficient to enable praetorian possession of the estate to be granted; just as where the seals of seven witnesses appear, although they may not include the seals of all who sealed the will.

8. The Same, Digest, Book XXIV.

If the following was inserted into a will, "Let Sempronius be the heir to half of my estate; let Titius be an heir to a third of my estate, if a ship should arrive from Asia; and let the said Titius be the heir to a sixth of my estate, if a ship should not arrive from Asia," in this instance, Titius is not appointed heir to two different shares of the estate, but he is understood to be substituted for himself, and therefore he is held to be entitled to no larger a share than one-third. In accordance with this statement, as a sixth of the estate remains undisposed of, Titius will not only obtain possession of a third of the same under the Praetorian Edict, but also of the sixth which will accrue to him.

(1) Where a substitute is appointed for a son under the age of puberty, as follows, "If my son should die before reaching the age of puberty, then let Titius be my heir," he can claim the estate just as if the word "my" had not been added, and he can also obtain praetorian possession of it.

(2) If a mistake is made in the name or the surname of the person entitled to the estate, he can, nevertheless, obtain praetorian possession of the same.

(3) Moreover, where the name of the heir has been erased in the will at the desire of the testator, even though it can still be read, he is not understood to have been appointed, so that he can either enter upon the estate, or demand praetorian possession of the same in accordance with the Civil Law.

(4) A certain man drew up his will in writing, but appointed orally a substitute for his son, who was under the age of puberty. I gave it as my opinion that the intention of the Praetor in granting jpossession of the estate was that the heirs of the son and those of the father should be considered separately. For just as praetorian possession of an estate is granted to the appointed heir of the son separately from the heirs of the father, so it should also be given separately from the appointed heirs of the father, where the heir is orally appointed.

9. Pomponius, On Sabinus, Book II.

In order that praetorian possession of an estate may be granted in accordance with the pupillary substitution, inquiry should be made whether the will of the father was sealed, even though that portion containing the substitution was produced unsealed.

10. Paulus, On Plautius, Book VIII.

When a slave is appointed an heir conditionally, there is some doubt as to whether he can obtain praetorian possession of the estate, or not. Our Scaevola holds that he can obtain it.

11. Papinianus, Questions, Book XIII.

"Let Titius be the heir of the one of my children who shall be the last to die before reaching the age of puberty." If the two children should die in a very distant place, and the substitute did not know which one of them died last, the opinion of Julianus must be adopted, which was that, on account of the uncertainty of the condition, possession of the estate of even one who died first could be demanded by the substitute.

(1) Where a son who was appointed heir returns from captivity after the death of his father, he can obtain praetorian possession of his estate, and the term of a year in which he can do so will be computed from the day of his return.

(2) Titius, after having made his will, gave himself to be arrogated, and then, having become his own master, died. If the appointed heir should demand praetorian possession, he will be barred by an exception on the ground of fraud; because, by giving himself to be arrogated, the testator transferred all his property, together with himself, to the family and household of another. It is clear that if, having become his own master, he stated in a codicil, or in some other document that he wished to die without changing his will, the will which had become inoperative is understood to have been restored by this subsequent statement, in the same way as if he had executed another will and had torn it up, so as to leave the first one in force. Nor should anyone think that a will can be made by the mere expression of a wish; for, in this instance, no question whatever is raised with reference to the legality of the instrument, but only with reference to the force of the exception that, under these circumstances, may be filed against the plaintiff, which must depend upon the person of the adversary.

12. Paulus, Questions, Book VII.

In order that the appointed heir may obtain praetorian possession of the estate I think it should be required that his identity be established by a suitable designation, so that the share to which he is entitled can be found, even if he was appointed without any share; for when an heir is appointed without a share he can take one which is undisposed of, or some other portion of the estate. If, however, the heir was designated in such a way as to seem to be excluded by the will, because the share of the estate to which he was appointed cannot be found, he shall not obtain praetorian possession. This occurs where anyone appoints an heir as follows, "Let Titius be my heir to the same portion of my estate to which I have appointed him by my first will," or "Let him be my heir to the same share to which I have appointed him by my codicil," and it should be ascertained that he was not appointed. If, however, I should say, "Let Titius be my heir if I have appointed him heir to half of my estate in my first will," or "Let him be my heir if I have appointed him heir to half of my estate in my codicil," he can then obtain possession of my estate, as he was appointed heir conditionally.

 

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Tit. 12. Concerning praetorian possession where a son has been manumitted by his father.

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1. Ulpianus, On the Edict, Book XLV.

A son who has been emancipated by his father is in the same condition, so far as praetorian possession contrary to the provisions of the will is concerned, as that of a freedman. This appears to the Praetor to be perfectly just, because the son obtains the advantage of acquiring property from his father; whereas, if he was under paternal control, and should acquire anything for himself, his father would reap the benefit of it. Hence, the rule was established that the father should be allowed to obtain praetorian possession contrary to the provisions of the will, just as a patron is permitted to do.

(1) Therefore, persons who have been manumitted are enumerated in the Edict as follows, "He who had been emancipated by his father, or by his paternal grandfather, or by his paternal great-grandfather."

(2) Where a grandson, who has been manumitted by his grandfather, gives himself in arrogation to his father, even if he should die while still under paternal control, or should die after having been manumitted, his grandfather will only be admitted to the succession in accordance with the interpretation of the Edict; because the Praetor grants the possession of the estate, just as where a slave has been manumitted from servitude. If, however, this should be the case, or if the son should not be arrogated because the arrogation of a freedman is not permitted, or if it should be done fraudulently, the rights of the patron would, nevertheless, remain unimpaired.

(3) If a father has either received money to induce him to emancipate his son, or if, afterwards the son, during his lifetime, should pay him enough to prevent him from opposing his will; he will be barred by an exception on the ground of bad faith.

(4) There is another instance in which a father does not obtain ipossession of the estate of his emancipated son, contrary to the provisions of the will, and that is where the son happens to enter the army; for the Divine Pius stated in a Rescript that the father could not, under these circumstances, obtain possession of the estate of his emancipated son in opposition to the terms of the will.

(5) It is settled that the children of a father, who manumitted his son, cannot obtain possession of the estate of the latter, in opposition to the terms of the will; even though the children of a patron can do so.

(6) Julianus says that where a father has obtained possession of the estate of his emancipated son, in opposition to the terms of the will, he will retain the former privilege which he enjoyed without manumission; for he should not be prejudiced because he possessed the rights of a patron, as he is still a father.

2. Gaius, On the Provincial Edict, Book XV.

A father is not to be considered the equal of a patron to the extent that the Favian or Calvisian Action may be granted him, for the reason that it is unjust for freeborn men not to have unrestricted power to alienate their property.

3. Paulus, On Plautius, Book VIII.

Paconius says that if a son who had been emancipated and manumitted by his father should appoint some disreputable persons his heirs (as, for instance, prostitutes), possession of his entire estate contrary to the provisions of the will shall be given to his father; otherwise he would be entitled to only half of the estate, if a disreputable heir had not been appointed.

(1) If an emancipated son should pass his father over in his will, or should appoint him his heir, the father will not be obliged to execute any trust, so far as the share of the estate to which he is entitled is concerned, even if he enters upon it. Where, however, a daughter or a granddaughter is manumitted, and the father or grandfather, having been passed over in the will, demands praetorian possession of the estate, the same rule will apply as in the case of a son.

4. Marcellus, Digest, Book IX.

The Praetor makes no provision in the Edict with reference to a father who has emancipated his son, and imposed upon the latter certain conditions in consideration of granting him freedom; and therefore the father can enter into no valid stipulation as to any services to be rendered by his son.

5. Papinianus, Questions, Book XI.

The Divine Trajan compelled a father to emancipate his son whom he had treated badly, and in a way contrary to that dictated by paternal affection, and the son, having afterwards died, the father declared that he was entitled to the possession of his estate on account of having manumitted him. This, however, was refused him on the advice of Neratius Priscus and Aristo as the emancipation took place through necessity, because of the want of paternal affection.

 

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Tit. 13. Concerning praetorian possession of an estate in the case of the will of a soldier.

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1. Ulpianus, On the Edict, Book XLV.

There is no doubt that the wishes of those who make their last wills while in arms against the enemy, no matter in what way they may do so, and who die while in the army, should be observed. For, although the condition of a soldier is different from that of those persons who are privileged by the Imperial Constitutions, still, as men who constantly go into battle are exposed to the same dangers, it is only reasonable that they should claim the same privileges for themselves. Therefore, all who are in such a position that they cannot make wills under military law, if they are found in the train of the army and die there, can execute wills in whatever way they desire, and in whatever way they may be able, whether they are Governors of provinces, Imperial Deputies, or any others who are incapable of testation in accordance with military law.

(1) Moreover, there is no doubt that the captains of ships and the commanders of triremes can make wills under military law. All the oarsmen and sailors of fleets are considered as soldiers, and also the guards are classed as such; and there is no doubt that all these are capable of testation in accordance with military law.

(2) If a soldier is transferred from one command to another, even though he may have left one and not yet have been enrolled in another, he can, nevertheless, make a will according to military law; for he is still a soldier, although he may not yet have been assigned to any particular legion.

 

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Tit. 14. Concerning the right of patronage.

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1. Ulpianus, On the Office of Proconsul, Book IX.

Governors should hear the complaints of patrons against their freedmen, and their cases should be tried without delay; for if a freedman is ungrateful, he should not go unpunished. Where, however, the freedman fails in the duty which he owes to his patron, his patroness, or their children, he should only be punished lightly, with a warning that a more severe penalty will be imposed if he again gives cause for complaint, and then be dismissed. But if he is guilty of insult or abuse of his patrons, he should be sent into temporary exile. If. he offers them personal violence, he must be sentenced to the mines. The same rule will apply where he has caused them annoyance by means of a vexatious lawsuit, or suborned an informer against them, or has attempted to make some accusation against them.

2. The Same, Opinions, Book I.

Freedmen should not be forbidden by their patrons to transact lawful business.

3. Marcianus, Institutes, Book II.

Where anyone is appointed a testamentary guardian, and a female slave is bequeathed to him, and he is asked to manumit her, and, after doing so, he receives a legacy and excuses himself from accepting the guardianship of the minor, the Divine Severus and Antoninus stated in a Rescript that while he was, in fact, a patron of the slave, he should be deprived of all the rights attaching to the condition of patronage.

4. The Same, Institutes, Book V.

The Emperors Severus and Antoninus very properly stated in a Rescript that the rights over freedmen are preserved for children, where their father has been convicted of treason; just as such rights are preserved for the children of those who are punished for any other cause.

5. The Same, Institutes, Book XIII.

The Divine Claudius ordered that a freedman who had been proved to have instigated informers to raise a question as to the civil status of his patron should again become the patron's slave.

(1) It is provided by a Rescript of our Emperor that if a patron does not support his freedman, he shall forfeit his right of patronage.

6. Paulus, On the Lex Aelia Sentia, Book II.

He who permits his freedman to swear that he will not marry, or have any children, is understood to be in the same position as one who compels his freedwoman to swear that she will not marry, or have any children. If, however, his son should do this, without his father's knowledge, or if he should enter into a stipulation with the freedman, this will not prejudice him in any way; but if a son who is under the control of his father should do so by his order, it is clear that he will be liable under the above-mentioned law.

(1) A patron stipulated for a hundred days of labor to be performed, or five aurei to be paid for each day by his freedman. This agreement does not seem to be contrary to law, because the freedman has the power to perform the labor.

(2) Although no person is excepted by this law, still it should be understood only to refer to those who can have children. Hence, if anyone should compel a freedman who has been castrated to take such an oath, it must be said that he cannot be held liable under this law.

(3) If a patron should compel his freed woman to swear to marry him, and he does so with the intention of marrying her, he will not be considered to have done anything illegal. If, however, the patron should not marry her, and only required her to take the oath to prevent her from marrying another, Julianus says that he has committed a fraud against the law, and that he should be liable, just as if he had compelled his freedwoman to swear not to marry at all.

(4) An oath is permitted by the Lex Julia relating to marriages of different orders, which, in this instance, is imposed upon a freedman or a freedwoman, not to marry, provided they desire to contract a legal marriage.

7. Modestinus, On Manumissions.

The Divine Vespasian decreed if a female slave had been sold under this law upon condition that she should not be prostituted, and she should be prostituted, that she would become free; and that if she afterwards came into the possession of another purchaser, without this condition, that she should be free by virtue of the sale, and become the freedwoman of the former vendor.

(1) It is provided by the Decrees of the Emperors that the Governors of provinces, who have jurisdiction over the complaints of patrons, should impose penalties upon their freedmen in proportion to the gravity of their offences. These penalties are sometimes required in the case of an ungrateful freedman, and he is either deprived of a part of his property which is given to his patron, or he is scourged with whips, and then discharged.

8. The Same, Rules, Book VI.

The Divine Hadrian stated in a Rescript that where a slave was manumitted by a son under paternal control, who was a soldier, he became the freedman of the soldier and not of his father.

(1) A slave who is not manumitted will obtain his freedom when he is sold under the condition that he be manumitted within a certain time; and, after the time has elapsed, he will become the freedman of the purchaser, even though he may not have been manumitted.

9. The Same, Rules, Book IX.

Sons who refuse to accept the estates of their fathers do not lose their rights over the freedmen of the latter. The same rule applies to an emancipated son.

(1) Some masters, who do not retain their rights as patrons over the property of their freedmen, are excepted by the law, as in the case of one who has been condemned to death, and has not been restored to his civil rights; or one who has been the informer of a crime committed by his freedman; or where a son, over twenty-five years of age, has accused a freedman belonging to his father of a capital crime.

10. Terentius Clemens, On the Lex Julia et Papia, Book IX.

It has been decided that a patron who has accused his freedman of a capital crime is excluded from praetorian possession of his estate contrary to the provisions of the will. Labeo thinks that the accusation of a capital crime should include both those which involve the penalty of death, and those punished by exile. An accuser is understood to be one who gave the name of the alleged guilty person, unless he asks that he receive immunity. Servilius says that this was also the opinion of Proculus.

11. Ulpianus, On the Lex Julia et Papia, Book X.

Moreover, he will not be admitted to the succession of his intestate freedman which is granted him by the Law of the Twelve Tables.

12. Modestinus, Opinions, Book I.

Gaius Seius, having died after making his will, appointed his freedman Julius, together with his sons, heir to part of his estate, just as if he had been his own child. I ask whether an appointment of this kind can change the civil condition of the freedman. Modestinus gave it as his opinion that it would not change his condition.

13. The Same, Pandects, Book I.

A son under paternal control cannot manumit a slave who is part of his peculium, unless he does so by order of his father; and the slave, after having been manumitted, becomes the freedman of the father.

14. Ulpianus, On the Lex Julia et Papia, Book V.

If I should swear in court that I am the patron of a certain slave, it must be held that I am not entitled to his estate in that capacity, because an oath does not constitute a patron. The case would, however, be different, if it had been judicially decided that I was his patron, for then the judgment will stand.

15. Paulus, On the Lex Julia et Papia, Book VIII.

Anyone who compels his freedman to be sworn contrary to the Lex Aelia Sentia will neither himself nor his children have any rights over the freedman.

16. Ulpianus, On the Lex Julia et Papia, Book X.

When a freedman commits a fraud against the law, in order that he may die worth less than a hundred thousand sesterces, his act is void by operation of law; and therefore his patron will succeed him as a freedman possessed an estate of that amount. Hence, everything which he has alienated, for any reason whatsoever, will be of no force or effect. It is evident that if he should alienate any property for the purpose of defrauding his patron, and, after doing so, he should remain worth more than a hundred thousand sesterces, the alienation will be valid, but any property which was fraudulently disposed of can be recovered by the Favian or the Calvisian action. Julianus has frequently stated this, and it is our practice. The reason for this difference is that whenever an alienation of anything is made for the purpose of defrauding the law the act is void. Moreover, he is guilty of fraud who diminishes the value of his estate to less than a hundred thousand sesterces for the purpose of evading the provisions of the law. But if, after the alienation has taken place, he still remains the owner of property worth a hundred thousand sesterces, he is not considered to have committed a fraud against the law, but only against his patron; and therefore the property which he has disposed of can be recovered by either the Favian or the Calvisian Action.

(1) Where anyone, for the purpose of diminishing the value of his property to an amount under a hundred thousand sesterces, alienates several articles at once, so that by revoking the sale of one, or of portions of all of them, he will be worth more than a hundred thousand sesterces, will it be necessary for us to revoke the sale of all the articles, or that of each one pro rata, in order to render his fortune equal to a hundred thousand sesterces? The better opinion is that the alienation of all the articles is of no force or effect.

(2) If anyone should not sell all of his property at once, but a part of it at one time, and a part of it at another, the subsequent alienation will not be revoked by operation of law, but the former one will be; and there will be ground for the institution of the Favian Action with reference to the property last disposed of.

17. The Same, On the Lex Julia et Papia, Book XI.

The Divine Brothers stated the following in a Rescript: "We have ascertained from those who are the most learned in the law that it was sometimes doubtful whether a grandson could demand praetorian possession of the estate of his grandfather contrary to the provisions of the will, if his father, who was over twenty-five years of age, had accused him of a capital crime. It is true that Proculus, a jurist of great authority, was of the opinion that, in a case of this kind, praetorian possession should not be given to the grandson; and we adopted this opinion when we issued a Rescript in answer to the application of Caesidia Longina. But, our friend Volusius Maecianus, Praetor of the Civil Law, and one who pays the greatest attention to old and well-founded precedents, being influenced by his respect for Our Rescript (as he stated to Us) did not think that he could decide otherwise. But as We have discussed this point very fully with Maecianus himself, and with others of our friends learned in the law, the better opinion seems to be that a grandson will not be excluded from the estate of his freedman's grandfather, either by the words or the spirit of the law, or by the Edict of the Praetor, or on his own account, or by the stigma attaching to his father. We are also aware that this opinion has been adopted by many eminent jurists, as well as by that most illustrious man Salvius Julianus, our friend."

(1) The question also arose, if a son accused the freedman of his father of a capital offence, whether this would prejudice the rights of his children. Proculus held that the stigma attaching to the son of the patron would prejudice his children. Julianus, however, denies that this is the case; and it must be held that the opinion of Julianus should be adopted.

18. Scaevola, Opinions, Book IV.

I ask whether a freedman can be prevented by his patron from carrying on the same kind of business which his patron is transacting in the same colony. Scaevola answered that he could not be prevented from doing so.

19. Paulus, Sentences, Book I.

A freedman is ungrateful when he does not show proper respect for his patron, or refuses to manage his property, or undertake the guardianship of his children.

20. The Same, Sentences, Book III.

Where a freedman dies after making his will, power is given to his patron to demand either payment of whatever was due for granting him his freedom, or praetorian possession of a part of his estate; and even if the freedman should die intestate, the patron will still have the choice of these two things.

21. Hermogenianus, Epitomes of Law, Book III.

If the patron or the freedman has been banished, and afterwards restored to his civil condition, the right of patronage, as well as that to demand praetorian possession contrary to the provisions of the will, which have been lost, will be restored; and this right is preserved, even if the patron or the freedman should be restored to his former status after having been sentenced to the mines.

(1) A patron is excluded from praetorian possession contrary to the provisions of the will when he is appointed heir to only a twelfth of the estate; and what is necessary to make up the amount to which he is entitled can be obtained through his slave by a bequest of the freedman payable unconditionally, and without delay, either by leaving him the estate, or a legacy, or a sum of money payable under a trust.

(2) Where only one of two patrons is appointed heir to what is due to him unconditionally, and without delay, he cannot demand praetorian possession in opposition to the provisions of the will; even if a smaller amount than he was entitled to has been left to him, and he should demand praetorian possession of the estate contrary to the provisions of the will, the share of the other patron will accrue to him.

(3) If the natural children of a freedman, who had been disinherited by him, should through their slaves succeed to a share of the estate of their father, a stranger having been appointed heir to the remainder, this will affect the right of the patron.

(4) Where the son of a freedman is appointed his heir, and rejects the estate, the patron will not be excluded.

22. Gaius, On Special Cases.

It is well established that even if the son of a patroness is under parental control, the estate will still belong to him by law.

23. Tryphoninus, Disputations, Book XV.

When a son left the death of a father unavenged, and a slave having detected the murderer, had deserved his freedom on this account, I held that the son should not be considered as the patron of the slave, for the reason that he was unworthy.

(1) Where a false codicil had been made, which at first was considered to be genuine, and the heir, ignorant of the fact, granted freedom to certain slaves by virtue of a trust created by said codicil, it was stated in a Rescript of the Divine Hadrian that the slaves would be free, but that they must pay the heir their full value. And it was justly held that the said slaves should become the manumitted freedmen of the heir, for the reason that his right over them as patron still remained in force.

24. Paulus, In the First of the Six Books of the Imperial Decrees Rendered in Council; or the Imperial Decisions.

Camelia Pia appealed from the decision of Hermogenes, which set forth that the judge who had jurisdiction over an estate to be divided between herself and her co-heir had divided not only the property, but the freedmen as well. It was decided that this had not been done in accordance with any law, and that the division of the freedmen was void; but that the appointment of the provisions made by the judge among the co-heirs should be confirmed without any alteration.

 

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Tit. 15. Concerning the respect which should be shown to parents and patrons.

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1. Ulpianus, Opinions, Book I.

The filial affection due to parents should also be manifested by soldiers. Wherefore, if a son, who is a soldier, commits any improper act towards his father, he must be punished in proportion to his offence.

(1) Filial affection between a mother and a son who have been liberated from slavery together should be maintained in accordance with natural law.

(2) If a son, by the use of abusive language, should insult his father or his mother, whom it is his duty to respect, or should lay impious hands upon either of them, the Prefect of the City shall punish the crime, which affects public order, in proportion to its gravity.

(3) A son should be considered as unworthy to be a soldier, who calls his father and his mother, by whom he acknowledges that he has been brought up, malefactors.

2. Julianus, Digest, Book XIV.

The respect due to parents and patrons is of such a character that an action for fraud or injury can not be granted against them, even though they may appear by an attorney; for although, by the terms of the Edict, if judgment be rendered against them, they might not be considered infamous; still, according to public opinion itself, they will not escape the imputation of infamy through the very proceeding.

(1) Judgment for forcible possession is also forbidden to be rendered against them.

3. Marcellus, Opinions.

Titius purchased a boy slave, and after the lapse of several years ordered him to be sold, but subsequently having been begged to manumit him, did so, having received from him a sum of money as his value. I ask whether the son and heir of the master who manumitted him can accuse the freedman of being ungrateful. The answer was that he could, if there was no other obstacle; for it makes a great deal of difference where anyone has given freedom to his slave in consideration of money obtained from him, or from a friend of his, and where a slave, who had belonged to another, becomes his property and pays him a sum of money for his freedom. For the former confers a benefit upon him, although it is not gratuitous; the latter, however, can be considered to have done nothing more than to have lent him his aid.

4. Marcianus, Public Decisions, Book II.

The Divine Severus and Antoninus stated in a Rescript that an ungrateful freedman could be accused by the agent of his patron.

5. Ulpianus, On the Edict, Book X.

A parent, a patron, a patroness, or the children of relatives of the latter, will not be liable to an action in factum on account of a transaction, in which they are said to have received a sum of money, in consideration of either the performance or nonperformance of some act.

(1) Neither will actions implying moral turpitude, nor such as are based upon bad faith, or fraud, be granted against them.

6. Paulus, On the Edict, Book XI.

Nor can suit be brought against them for corrupting a slave:

7. Ulpianus, On the Edict, Book X.

Although such actions may not imply moral turpitude.

(1) And judgment shall be rendered against them only for the amount which they are able to pay.

(2) Nor can they be opposed by exceptions on the ground of bad faith, or for force, or fear, or by interdicts unde vi, or for any injury suffered through violence.

(3) When these persons tender an oath, they are not compelled to swear that this is not done maliciously.

(4) When a freedman alleges that his patroness has fraudulently been placed in possession of an estate in the name of her unborn child, he shall not be heard, because he cannot accuse his patroness of fraud, for such persons are entitled to respect; as is stated in the Sections of the Edict.

(5) Respect, however, is only due to them personally, and not to those who represent them; but if they themselves should appear for others, they will still be entitled to respect.

8. Paulus, On the Edict, Book X.

The heir of a freedman is entitled to all the rights of a stranger against the patron of the deceased.

9. Ulpianus, On the Edict, Book LXVI.

The persons of a father and a patron should always appear honorable and sacred in the eyes of a freedman and a son.

10. Tryphoninus, Disputations, Book XVII.

A father has no right to place any obligation upon his emancipated son, in consideration of having granted him his freedom, for the reason that nothing of this kind can be imposed upon children. Nor can anyone say that a son is bound by an oath to his father, who manumits him, in the same way as a freedman is to his patron, as children owe their parents affection and not menial services.

11. Papinianus, Opinions, Book XIII.

A freedwoman is not considered ungrateful because she works at her trade in opposition to the wishes of her patron.