Paulus, Questions, Book IX. Where a posthumous child appointed heir under some condition is born while the condition is pending, and during the lifetime of its father, this breaks the will.

Paulus, Questions, Book IX. Clemens Patronus provided by his will, “that if a son should be born to him, he should be his heir; if two sons should be born to him they should be his heirs to equal portions of his estate; if two daughters were born to him, the same division should be made; if a son and daughter should be born, two-thirds of the estate should be given to the son, and one-third to the daughter”. Two sons and a daughter having been born, the question arose how we should make the division of the estate in the case stated? Since the sons inherit equally, each of them should have twice as much as their sister; therefore the estate should be divided into five parts, out of which four should be given to the male heirs, and one to the female heir. 1A testator inserted the following into his will: “Let Sempronius be my heir to the share to which I was appointed heir by Titius, and which I shall apply for in person.” This appointment does not come under the head of seeking after an estate; for it is evident that the appointment will be void if the will of Titius is not offered by the testator himself, all suspicion of the appointment for interested purposes having been removed.

Paulus, Questions, Book IX. A question arises in the following case. A certain man who had a son past the age of puberty that was deaf, obtained permission from the Emperor to appoint a substitute for him, and substituted Titius. The said deaf son married a wife after the death of his father and a son was born to him. I ask whether the will was broken. I answered that princes themselves are accustomed to explain rights which they have granted, but where the intention of the prince is examined in this case, it can be said that he only intended the right to be conceded to the father so long as his son remained in the same condition; and that, just as, according to the Civil Law, pupillary substitution is terminated by puberty, so the Emperor imitated this rule in the case of the son, who was incapable of making a will on account of his infirmity. For if he had made the substitution for a son who was insane, we would say that the will would cease to be valid when the son became of sound mind, because then he himself could make a will; and indeed the privilege bestowed by the Emperor would become unjust if we should hold that the will was valid after this, for it would deprive a man who was sane of the right to make his own will. Therefore it must be held that substitution is also annulled by the birth of a legal heir, because it makes no difference whether the son himself subsequently appointed another heir, or whether he received one by law; for it is not probable that either the father or the Emperor, in this instance, had in view the disinheritance of the son who was afterwards born. Nor does it make any difference in what way the privilege granted by the Emperor may interfere with the execution of the will, or whether it has reference to one, or to several persons. 1I also ask where a substitution is made as follows: “If my son should die under the age of ten years, let Titius be my heir; if he should die under the age of fourteen years, let Mævius be my heir”, and the son died at the age of eight years, will Titius be his sole heir by virtue of the substitution, or will Mævius also be one, because it is certain that the son died under the age of ten years, as well as under the age of fourteen. I answered that the father had a right to make a substitution for his son during the entire time before he attained the age of puberty, but puberty put an end to this right. The better opinion is that the time prescribed separately for each party should be observed, unless it is clearly evident that the will of the testator was opposed to this. 2Lucius Titius, while having children under his control, appointed his wife his heir, and substituted the children for her. The question arose whether the appointment of the wife was of no force or effect, for the reason that the children were not disinherited in this degree. I answered that the degree in which the children were passed over was of no importance, since the same parties were appointed as substitutes who were heirs under the will, that is to say, because the children do not annul the entire will, but only the degree mentioned which was not valid from the beginning; just as it has been determined that if a child is passed over in the first degree, he is disinherited in the second. But it makes no difference for what reason the institution of the second heir is valid, whether because the son was disinherited by his appointment, or because the son himself was appointed a substitute. 3Julius Longinus, a father, substituted for his children the heirs that he had appointed for himself as follows: “Whoever shall be my heir.” One of the heirs appointed had tacitly agreed to give a share of what he received to a person who was not capable of taking it, having been admitted to the substitution of the son under the age of puberty; what share should he be permitted to have, the one for which he was appointed, or the one which he took, in order that his share might be increased in the substitution. I answered that he who consents to a fraud against the law, by entering upon an estate, becomes the heir, nor does he cease to be such even though he be deprived of the property left to him under such circumstances. Hence, he can be the heir under the pupillary substitution only to the share to which he was appointed, for he is sufficiently punished for what he did contrary to law; and, indeed, I would say the same even though he ceased to be the heir. The same rule should be understood to apply to anyone who, after he had been appointed heir and entered upon the estate, is reduced to slavery, and is subsequently presented with his freedom, who is permitted to be admitted to the substitution left to him by the will; for although he has lost the inheritance to which he was entitled by his appointment as heir, still, by virtue of the substitution, he can receive the same share which he lost.

The Same, Questions, Book IX. Where a son under paternal control, while serving in the army, was captured and died in the hands of the enemy, we say that the Cornelian Law is also applicable to his will. We may ask, however, whether his father died before him at home, and if a grandson was born to him by the said son, whether the will of the father would be broken, in like manner. It must be held that the will will not be broken, for the reason that he is considered to have died at the very time that he was taken prisoner.

Paulus, Questions, Book IX. Where anyone, having made a will by which he appointed his children his heirs, charged them with a trust, not as his lawful heirs, but as those whom he had appointed, and the will, for some reason, becomes void, his children cannot be compelled to execute the trusts under the same, if they should obtain the estate as heirs at law.

Paulus, Questions, Book IX. Where a legacy was bequeathed to a slave with his freedom, and he was afterwards sold, and the bequest of his freedom was revoked, although such a revocation is void with reference to a slave belonging to another, still, the purchaser will not be entitled to the legacy. There is reason in this, for the revocation will stand, as the slave can be repurchased, just as the bequest of the legacy is valid when it is made to one who, at the time the will was made, belonged to the testator, but who, after having been sold, obtained his freedom by means of a codicil. 1What would be the case if the testator, during his lifetime, should manumit a slave whom he had directed to be free by his will, and should then revoke his grant of freedom by a codicil? Let us see whether the mere revocation of his freedom would annul the legacy. Some authorities think that it would, but a superfluous provision does not affect a legacy.

The Same, Questions, Book IX. Where a patron is appointed heir to the sixth of the estate of his freedman, and the slave of the latter is appointed heir to the remainder, the trust with which heirs are charged in favor of the patron will not apply to the share of the slave. If, however, the slave should be appointed sole heir, I do not think that the share due to the patron should contribute to the legacies bequeathed under the trust.