Ex libro VI

Dig. 28,2,29Scaevola libro sexto quaestionum. Gallus sic posse institui postumos nepotes induxit: ‘Si filius meus vivo me morietur, tunc si quis mihi ex eo nepos sive quae neptis post mortem meam in decem mensibus proximis, quibus filius meus moreretur, natus nata erit, heredes sunto’. 1Quidam recte admittendum credunt, etiamsi non exprimat de morte filii, sed simpliciter instituat, ut eo casu valeat, qui ex verbis concipi possit. 2Idem credendum est Gallum existimasse et de pronepote, ut dicat testator: ‘si me vivo nepos decedat, tunc qui ex eo pronepos’ et cetera. 3Sed et si vivo filio iam mortuo pronepote cuius uxor praegnas esset, testamentum faceret, potest dicere: ‘Si me vivo filius decedat, tunc qui pronepos’. 4Num si et filius et nepos vivat, concipere ‘utrisque mortuis vivo se, tunc qui pronepos nasceretur?’ quod similiter admittendum est, ita sane, si prius nepos, deinde filius decederet, ne successione testamentum rumperetur. 5Et quid si tantum in mortis filii casum conciperet? quid enim si aquae et ignis interdictionem pateretur? quid si nepos, ex quo pronepos institueretur, ut ostendimus, emancipatus esset? hi enim casus et omnes, ex quibus suus heres post mortem scilicet avi nasceretur, non pertinent ad legem Vellaeam¹¹Die Großausgabe liest Velleam statt Vellaeam.: sed ex sententia legis Vellaeae²²Die Großausgabe liest Velleae statt Vellaeae. et haec omnia admittenda sunt, ut ad similitudinem mortis ceteri casus admittendi sint. 6Quid si qui filium apud hostes habebat testaretur? quare non induxere, ut, si antea quam filius ab hostibus rediret quamvis post mortem patris decederet, tunc deinde nepos vel etiam adhuc illis vivis post mortem scilicet avi nasceretur, non rumperet? nam hic casus ad legem Vellaeam³³Die Großausgabe liest Velleam statt Vellaeam. non pertinet. melius ergo est, ut in eiusmodi utilitate praesertim post legem Vellaeam⁴⁴Die Großausgabe liest Velleam statt Vellaeam., quae et multos casus rumpendi abstulit, interpretatio admittatur, ut instituens nepotem, qui sibi post mortem suus nasceretur, recte instituisse videatur, quibuscumque casibus nepos post mortem natus suus esset rumperetque praeteritus: atque etiam si generaliter, ‘quidquid sibi liberorum natum erit post mortem’ aut ‘quicumque natus fuerit’ sit institutus, si suus nasceretur. 7Si eius, qui filium habeat et nepotem ex eo instituat, nurus praegnas ab hostibus capta sit ibique vivo pariat, mox ille post mortem patris atque avi redeat, utrum hic casus ad legem Vellaeam⁵⁵Die Großausgabe liest Velleam statt Vellaeam. respiciat an ad ius antiquum aptandus sit, possitque vel ex iure antiquo vel ex Vellaea⁶⁶Die Großausgabe liest Vellea statt Vellaea. institutus non rumpere? quod quaerendum est, si iam mortuo filio pronepotem instituat redeatque mortuo. sed cum testamentum ab eo non rumpitur, nihil refert, utrum ex iure antiquo an ex lege Vellaea⁷⁷Die Großausgabe liest Vellea statt Vellaea. excludatur. 8Forsitan addubitet quis, an istis casibus si nepos post testamentum nascatur vivo patre suo, deinde ex eo concipiatur, isque vivo patre deinde avo nascatur, an non potuerit heres institui, quia pater ipsius non recte institutus esset. quod minime est expavescendum: hic enim suus heres nascitur et post mortem nascitur. 9Ergo et si pronepos admittetur, qui natus erit ex nepote postea vivo filio, atque si ex eo natus esset, adoptatur. 10In omnibus his speciebus illud servandum est, ut filius dumtaxat, qui est in potestate, ex aliqua parte sit heres institutus: nam frustra exheredabitur post mortem suam: quod non esse necessario in eo filio, qui apud hostes est, si ibi decedat et in nepote certe et pronepote, quorum si liberi heredes instituantur, institutionem numquam exigemus, quia possunt praeteriri. 11Nunc de lege Vellaea⁸⁸Die Großausgabe liest Vellea statt Vellaea. videamus. voluit vivis nobis natos similiter non rumpere testamentum. 12Et videtur primum caput eos spectare, qui, cum nascerentur, sui heredes futuri essent. et rogo, si filium habeas et nepotem nondum natum tantum ex eo heredem instituas, filius decedat, mox vivo te nepos nascatur? ex verbis dicendum est non rumpi testamentum, ut non solum illud primo capite notaverit, si nepos, qui eo tempore instituatur, quo filius non sit, verum et si vivo patre nascatur: quid enim necesse est tempus testamenti faciendi respici, cum satis sit observari id tempus quo nascitur? nam etsi ita verba sunt: ‘qui testamentum faciet, is omnis virilis sexus, qui ei suus heres futurus erit’ et cetera. 13Etiam si vovente parente vivo nascantur, sequenti parte succedentes in locum liberorum non vult rumpere testamentum: et ita interpretandum est, ut, si et filium et nepotem et pronepotem habeas, mortuis utrisque pronepos institutus succedens in sui heredis locum non rumpat. et bene verba se habent ‘si quis ex suis heredibus suus heres esse desierit’ ad omnes casus pertinentia, quos supplendos in Galli Aquili sententia diximus: nec solum, si nepos vivo patre decedat, nec succedens pronepos avo mortuo rumpat, sed et si supervixit patri ac decedat, dummodo heres institutus sit aut exheredatus. 14Videndum, num hac posteriore parte ‘si quis ex suis heredibus suus heres esse desierit, liberi eius’ et cetera ‘in locum suorum sui heredes succedunt’, possit interpretatione induci, ut, si filium apud hostes habens nepotem ex eo heredem instituas, non tantum si vivo te filius decedat, sed etiam post mortem, antequam ab hostibus reversus fuerit, succedendo non rumpet: nihil enim addidit, quo significaret tempus: nisi quod, licet audenter, possis dicere vivo patre hunc suum heredem esse desisse, licet post mortem decedat, quia nec redit nec potest redire. 15Ille casus in difficili est, si filium habeas et nepotem nondum natum instituas isque nascatur vivo patre suo ac mox pater decedat: non enim suus heres est tempore quo nascatur nec posteriori alii succedendo prohiberi videtur rumpere quam qui iam natus erit. denique et superiore capite ut liceat institui nondum natos, qui cum nascentur sui erunt, permitti, posteriore capite non permittit institui, sed vetat rumpi neve ob eam rem minus ratum esset, quod succedit. porro procedere debet, ut utiliter sit institutus: quod nullo iure potuit qui nondum natus erat. Iuliano tamen videretur duobus quasi capitibus legis commixtis in hoc quoque inducere legem, ne rumpantur testamenta. 16Quaeremus tamen, cum recepta est Iuliani sententia, an, si nascatur nepos vivo patre suo, deinde emancipetur, sponte adire possit hereditatem. quod magis probandum est: nam emancipatione suus heres fieri non potuit.

Ad Dig. 28,2,29Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 576, Note 7.Scævola, Questions, Book VI. Gallus stated that posthumous grandchildren could be appointed heirs in the following terms, namely: “If my son should die during my lifetime, and within ten months after my death any grandchildren, either male or female, should be born to his wife, let them be my heirs.” 1Certain authorities hold that the appointment of heirs will be legal, even if the father does not mention the death of the son, but simply appoints his grandchildren his heirs; since it may be inferred from his words that in such an event the appointment will be valid. 2It must also be believed that Gallus held the same opinion with reference to grandchildren, when the testator says: “If my grandson should die during my lifetime, then my great-grandchild who is his issue,” etc. 3If, however, the grandson should die during the lifetime of the son, leaving his wife pregnant, and the testator should make a will; he can say: “If my son should die during my lifetime, then my great-grandson sprung from him shall be my heir.” 4While the testator’s son and grandson are still living, can the testator provide for the succession of his great-grandson, under the assumption that both the former will die during his lifetime? This also must be admitted, in order to prevent the will from being broken by the succession, if in fact the grandson should die, and then the son after him. 5Ad Dig. 28,2,29,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 557, Note 5.What if the testator should only anticipate the event of the death of his son, and what would be the result if the testator should suffer the interdiction of water and fire? What if the grandson, the father of the great-grandson appointed heir, as we have stated, should be emancipated? These instances, as well as any of those in which a lawful heir is born after the death of his grandfather, have no connection with the Lex Velleia. But, in accordance with the spirit of the Lex Velleia, all these matters should be taken into consideration, just as other cases should be admitted, for example, where death occurs. 6What course must be pursued where the person who makes the will has a son in the hands of the enemy? Why has it not been held that, if the son should die before returning from captivity, but after the death of his father, then the grandson who was born during their lifetime, or even after the death of his grandfather, could not break the will? This case has no relation to the Lex Velleia. The better opinion therefore is that, for the sake of convenience, and especially after the Lex Velleia, which disposed of many cases where a will could be broken, the interpretation should be adopted that, where a testator appoints his grandson who was born after his death, he shall be held to have appointed him legally. And no matter under what circumstances the grandson born after the testator’s death may become his heir, whenever he has been passed over in the will, he can break it. Even if its provisions are stated in general terms, for instance: “Any children born to me after my death, or whoever shall be born after my death, shall be appointed my heir”; provided such a child should be born his heir. 7Where anyone has a son, and appoints his grandson born of said son his heir, and his daughter-in-law, being pregnant, is captured by the enemy, and while in their hands, and, during the lifetime of the grandfather and his son, brings forth a child, and the latter, after the death of his father and grandfather returns; is this case included in the Lex Velleia, or must recourse be had to the ancient law, so that the grandson who is appointed may not break the will either under the ancient law or the Lex Velleia? This question may be raised, if, after the death of the son, the grandfather appoints his grandson his heir, and the latter returns after the death of his grandfather. However, when the will cannot be broken by him who was appointed, it makes no difference whether he is excluded from the succession by the ancient law or by the Lex Velleia. 8Someone perhaps may doubt whether, in this instance, if the grandson should be born after the execution of the will, and during the lifetime of his father and grandfather, he can be appointed an heir because his father had not been legally appointed. There should be no apprehension on this ground, for the grandchild is born of a lawful heir after the death of his ancestors. 9Hence, if a great-grandson, born of a grandson, can be admitted to the succession, if afterwards his son should be living, a son born to him will also be entitled to the succession. 10In all these instances, it must be observed that only a son who is under parental control can be appointed heir to any portion of an estate, for his disinheritance after the death of the testator will be void. It is not necessary, however, for the son to be disinherited if he is in the hands of the enemy and dies there; and certainly with respect to the grandson and great-grandson, we never require their appointment if their children are appointed heirs, because they can be passed over. 11Let us now examine the Lex Velleia. It prescribes that children born in our lifetime, in like manner, cannot break our wills. 12The first section of the law has reference to those who after they are born, will become proper heirs. I ask, if you should have a son, and appoint as your heir your grandson by said son, who is not yet born, and your son should die, and your grandson should be born during your lifetime, what will be the result? It must be held from the words of the law that the will is not broken, as it not only states in the first section if the grandson is appointed at the time during which the son was not in existence, but also if he should be born during the lifetime of his father. In this case, why should it be necessary for the time when the will was executed to be considered, since it is sufficient to observe the time when the grandson was born? For, in fact, the following are the words of the law: “He who makes a will can appoint as heirs all those children of the male sex who will be his proper heirs”; and also, “even though they may have been born during the lifetime of their father”. 13In the next section of the law, it is not provided that those who succeed to the place of the children can break the will; and this must be interpreted in such a way that if you have a son, a grandson, and a great-grandson, and after the death of the first two, your grandson having been appointed and succeeding the lawful heir, will not break the will. It has been very properly decided that the words: “If any one of his heirs should cease to be his heir”; have reference to all those cases to which we have stated the formula of Gallus Aquilius is applicable; for not only where a grandson dies during the lifetime of his father, the great-grandson succeeding his deceased grandfather does not break the will, but also where he survives his father and then dies, provided he has either been appointed heir, or been disinherited. 14It should be considered whether by the words of this last section, namely: “If any of his heirs should cease to be his heir, his children shall become heirs in his stead”, are susceptible of the interpretation that if, having a son in the hands of the enemy, you appoint your grandson by said son your heir, not only if your son should die during your lifetime, but even after your death and before he returns from captivity, he does not break the will by the succession, for the testator added nothing by which the time might be indicated, unless you may rather rashly hold that he has ceased to be a lawful heir during the lifetime of his father (although he died after the death of the latter), because he did not and could not return. 15The following case is a difficult one. If you have a son and you appoint your grandson, who is not yet born, your heir, and the latter is born during the life of his father, and then his father dies, he is not his heir at the time when he was born, nor afterwards, for by his succession he who has already been born is held to be forbidden to break the will. Hence, by the first section of the law, those children are permitted to be appointed heirs who are as yet unborn, and who, after they are born, will be proper heirs. By the second section, their appointment is not permitted, but the law forbids them to break the will; nor on this account should the second section be considered of inferior importance. However, the child who was not yet born at the time he was appointed should take the place of his father (which in fact he could not do by law), just as if he had been legally appointed. Julianus, however, held that the two confused sections of the law might be reconciled in such a way as to prevent wills from being broken. 16After adopting the opinion of Julianus, let us, however, examine whether if a grandson is born during the lifetime of his father, and is subsequently emancipated, he can voluntarily enter upon the estate. This opinion should be approved, for a party cannot become a proper heir by emancipation.

Dig. 28,3,19Idem libro sexto quaestionum. Si ego et Titius instituti simus et a nobis postumus exheredatus sit, a substitutis nostris non sit exheredatus, Titio defuncto ne ego quidem adire potero: iam enim propter instituti personam, a quo postumus exheredatus est, in cuius locum substitutus vocatur, a quo postumus exheredatus non est, ruptum est testamentum. 1Sed si ego et Titius invicem substituti simus, quamvis in partem substitutionis exheredatus non sit, mortuo vel repudiante Titio me posse adire puto et ex asse heredem esse. 2In prima tamen specie et si vivat Titius, neque ego sine illo neque ipse sine me adire poterit, quia incertum est, an adhuc altero omittente rumpatur testamentum: itaque simul adire possumus.

The Same, Questions, Book VI. If Titius and myself should be appointed heirs, and by our appointment a posthumous child is disinherited, or one is not disinherited on account of our substitution as heirs, and Titius should die, I cannot enter upon the estate; for the will is broken on account of the appointment of a person by which the posthumous child is disinherited, and who is called to the succession as a substituted heir, by whom the posthumous child is not disinherited. 1Where, however, Titius and myself are substituted for one another, even though the posthumous child may not have been disinherited in that part of the will which mentions the substitution, and Titius either dies, or rejects the estate, I think that I can enter upon and become the heir of all of it. 2However, in the first case, even though Titius may be living, I cannot enter upon the estate without him, nor can he do so without me, for the reason that it is uncertain whether the will may not be broken by one of us refusing to accept, and therefore we should both enter upon the estate together.

Dig. 35,2,17Idem libro sexto quaestionum. Si post missionem faciat codicillos miles et intra annum decedat, ex testamento, quod in militia iure militari fecit, plena legata, ex codicillis habita Falcidiae ratione praestari debere dicitur. sed res ita expedietur: si, cum quadringenta haberet, testamento quadringenta, codicillis centum legaverit, ex quinta parte, id est octoginta, quae ad legatarium ex codicillis pervenirent, si Falcidiam non pateretur, quartam, id est viginti heres retinebit.

The Same, Questions, Book VI. If a soldier should make a codicil, and die within a year after his discharge, the legacies bequeathed by his military will, in accordance with military law, must be fully paid, but it is held that those left by his codicil must be paid after the Falcidian portion has been deducted. This matter should be explained as follows: If the testator has four hundred aurei and bequeaths four hundred by his will, and a hundred by his codicil, out of the fifth part (that is to say eighty, which the legatee would be entitled to by the codicil if it was not subject to the Falcidian Law), the heir will be entitled to retain a fourth, that is to say twenty aurei.

Corpus iurisprudentiae Romanae

Digesta Iustiniani Augusti

Quaestionum libri

Ex libro VI