Ulpianus, on Sabinus, Book I. The question has been raised to which sex shall we assign an hermaphrodite? And I am of the opinion that its sex should be determined from that which predominates in it.

Ulpianus, On Sabinus, Book I. Even a blind man can adopt, and be adopted.

Ulpianus, On Sabinus, Book I. A purchase cannot be contracted between father and son, except where it has reference to castrense peculium. 1No sale can take place without a price. It is not, however, necessary for the purchase-money to be actually paid, but an agreement perfects the sale without having been reduced to writing.

Ulpianus, On Sabinus, Book I. Although it is a rule of the Civil Law that a guardian cannot be appointed for the transaction of his own business, still, a guardian can use his authority to induce his ward to accept an estate which is indebted to him; even though, by doing so, the ward will become his debtor. For the first reason for the exertion of his authority, in this instance, is that his ward may become the heir, consequently will become indebted to him. He cannot, however, by the exercise of his authority, compel his ward to enter into a stipulation with him. Where anyone employs his authority to induce his ward to make a stipulation with his slave, the Divine Antoninus Pius stated in a Rescript that the ward would not be legally liable, but an action would be granted against her for the amount which she profited by the transaction. If the guardian causes anything to be given by the ward to his son, such an exertion of his authority will be void, for it is evident that he acquires the property by his own act. 1Where a guardian is compelled forcibly and against his will to remain, any act which he performs will not be valid; for his mere corporeal presence is not sufficient, as he might be considered to have given his consent where he was silent on account of being asleep, or because he was attacked by epilepsy.

Ulpianus, On Sabinus, Book I. By the Law of the Twelve Tables, the administration of his own property is forbidden to a spendthrift. This provision had previously been introduced by custom. In our day, however, where Prætors or Governors encounter a man of this kind, who regards neither time nor limit, so far as expenditures are concerned, but wastes his property by dissipating and squandering it, they appoint a curator for him just as they do for an insane person, and both continue under curatorship, until the insane person recovers his senses, or the spendthrift conducts himself properly. Whenever this takes place, the parties, by operation of law, cease to be under the supervision of their curators. 1The curatorship of one who was forbidden to dispose of his property was formerly refused to his son. However, a Rescript of the Divine Pius is extant in which he declares that curatorship should be granted by preference to a son, where his father is insane, provided the former is a man of integrity.

Ulpianus, On Sabinus, Book I. He who is legally prohibited from managing his own property cannot make a will, and if he should make one, it will not be valid in law. Where, however, he executed a will before his interdiction, it will be valid. Hence it is reasonable that he cannot be offered as a witness to a will, since he has not the right to make one himself. 1Where anyone has been convicted of public libel, it is stated in the Decree of the Senate that he cannot make a will; hence he can neither execute one, nor be offered as a witness to prove the will of another testator.

Ulpianus, On Sabinus, Book I. Where an heir is appointed by will, he cannot be a witness to it. The contrary rule applies to a legatee, and to one who is appointed guardian, for such persons can act as witnesses, if no other impediment exists; as, for instance, where the party had not arrived at puberty, or was under the control of the testator. 1The term “control” not only applies to children who are in the power of their father, but also to one whom the testator has redeemed from the hands of the enemy, although it is established that such a person shall not be a slave, but shall merely be kept under restraint until he has paid the amount of his ransom. 2Ad Dig. 28,1,20,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 542, Note 10.On the other hand, the question may be asked whether a father can be offered as a witness to a will by which his son disposes of his peculium castrense. And Marcellus states in the Tenth Book of the Digest that he can be a witness, and that his brother can also be one. 3Moreover, what we have stated with reference to the testimony of those who are under the control of a testator being prevented from witnessing a will is applicable to all cases where any kind of business is transacted by means of which property is acquired. 4Nor can an insane person be offered as a witness, as he is not of sound mind. If, however, he has lucid intervals, he can testify during their continuance; a will which he has executed before he became insane will be valid; and he should be entitled to the possession of property in accordance with the terms of the will. 5Ad Dig. 28,1,20,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 542, Note 15.I think that anyone who has been convicted of embezzlement cannot be a witness to a will, since his testimony in court is forbidden. 6A woman cannot act as a witness to a will, although she can be a witness in court; as is established by the Lex Julia de Adulteriis, which prohibits a witness who has been convicted of adultery from testifying or making a deposition. 7A slave cannot participate in the formalities attaching to the execution of a will, and very properly, as he has no share whatever in the rights conferred by the Civil Law, or indeed in those granted by the Prætorian Edict. 8The ancient authorities thought that those who are summoned to take part in the solemn formalities of a will should remain until the last attestation had been completed. 9We do not, however, require that a witness should understand the language of the testator; for the Divine Marcus, in a Rescript addressed to Didius Julianus, stated this with reference to a witness who was ignorant of the Latin language; for it is sufficient if the witness perceives by his senses for what purpose he was summoned. 10Ad Dig. 28,1,20,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 548, Note 2.Where the witnesses are detained against their consent, the authorities hold that the will is not valid.

Ulpianus, On Sabinus, Book I. Let us consider what is meant by the term “specific disinheritance.” Must the name, the title, and the surname be mentioned, or will it be sufficient for any of them to be stated? It is established that it is sufficient for one of them to be mentioned.

The Same, On Sabinus, Book I. Where the testator does not mention his son by name, but merely states that he was born of Seia, he legally disinherits him. And if he should refer to him in terms of reprobation, as, for example: “He who is not to be mentioned by me”; or “He who is not my son, who is a robber and a gladiator”; the better opinion is that the son is legally disinherited. The same rule applies where he refers to him as born of adulterous intercourse. 1Julianus thinks that a son should be unconditionally disinherited, which opinion we have adopted. 2Ad Dig. 28,2,3,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 554, Note 18.The son can be legally disinherited between the separate appointments of two heirs, and, in this instance, he will be removed from every degree of inheritance, unless the testator should have disinherited him as only one of his heirs; for if he does this, the disinheritance will be defective, just as if he had expressed himself in the following terms: “Whoever my son will be, I disinherit him.” For (as Julianus says) a disinheritance of this kind is defective, since the testator desires his son to be excluded after he has entered upon the estate, which is impossible. 3A son who is disinherited before the appointment of an heir is excluded from all degrees. 4In accordance with the opinion of Scævola, which I think to be correct, where a son is disinherited between two degrees of inheritance, he is excluded from both. 5Mauricianus properly holds that where two degrees of succession are mingled, the act of disinheritance will be valid, for example: “I appoint the first heir to half of my estate; if there is no first heir, the second heir shall inherit half of my estate, and the third the other half. I disinherit my son if there is no third heir, and I appoint the fourth in his stead”; for the son is, in this instance, excluded from every degree. 6Where a father executes a will in such a way as to pass over his son in the first degree, and disinherits him only in the second, Sabinus, Cassius, and Julianus hold that the first degree having been disposed of, the will begins to be operative from that degree from which the son was disinherited. This opinion should be approved.

Ulpianus, On Sabinus, Book I. The same rule applies if the testator should have said: “I disinherit So-and-So, the son of So-and-So,” attributing an adulterous father to him through mistake.

Ulpianus, On Sabinus, Book I. He who executes a will should generally begin with the appointment of an heir. He can also begin with a disinheritance specifically made; for the Divine Trajan stated in a Rescript that a son may be disinherited by name, even before the appointment of an heir. 1We also say that an heir has been appointed where the testator did not write, but only mentioned his name. 2A person who is dumb, or one who is deaf, can legally be appointed an heir. 3Where a testator is not about to bequeath any legacies or disinherit anyone, he can make a will in five words, by saying: “Let Lucius Titius be my heir”. This formula can also be used by a person who does not commit his will to writing, and who can even make a will in three words, as where he says: “Let Lucius be heir”; for the words my and Titius are superfluous. 4Where anyone is appointed sole heir to a tract of land, the appointment will be valid, without any mention of the land. 5If anyone should write as follows: “Lucius heir”, even though he may not add, “Let him be”; we hold that this is a nuncupative, rather than a written will. And if he should write: “Let Lucius be”, we hold that it would amount to the same thing. Therefore, if he should only write “Lucius”, Marcellus thinks, and not without reason, that this form would not be accepted at the present time. The Divine Pius, however, in the case where a testator, who was distributing certain portions of an estate among his heirs, merely said: “So-and-So to all this share, and So-and-So to all that”; but did not add “Let him be heir”, the Emperor stated in a Rescript that the appointment was valid, and this opinion was also adopted by Julianus. 6The Divine Pius also stated in a Rescript that an appointment was valid when made in the following terms: “Let my wife be”, even though the word “heir” was lacking. 7Julianus does not think, that an appointment made as follows, “So-and-So to be heir,” is valid, since something is lacking. This appointment, however, will be valid, because the words, “I order”, are understood.

The Same, On Sabinus, Book I. It is established that a person who is deaf or dumb can make a military will while in the army, and before having been discharged on account of his affliction.

The Same, On Sabinus, Book I. It is established that a person who is dumb or deaf, even if he was born so, can act as an heir and obligate himself for an estate. 1Ad Dig. 29,2,5,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 4; Bd. III, § 599, Note 6.It is also settled that anyone who is interdicted by law from disposing of his property, if he should be appointed an heir, can enter upon an estate.

Ulpianus, On Sabinus, Book I. A slave can legally be granted possession of an estate if the Prætor is certain of his civil condition. Possession can also be granted to a person who is absent and does not demand it, if the Prætor is not aware that this is the case. A woman, also, can apply for prætorian possession in behalf of another. 1A minor under the age of puberty cannot be granted possession of an estate by the Prætor, 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. 2It 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.

Ulpianus, On Sabinus, Book I. Celsus, in the Twelfth Book of the Digest, having the public welfare in view, says that a person born deaf can manumit a slave.

Ulpianus, On Sabinus, Book I. Where two masters deliver property to a slave owned by them in common, he acquires for one of his masters the share of the other.

Ulpianus, On Sabinus, Book I. When anyone has been forbidden to manage his own property, he is benefited by a stipulation, but he cannot deliver anything, or bind himself by making a promise. Hence a surety cannot intervene in his behalf, any more than in that of an insane person.

Ulpianus, On Sabinus, Book I. We also use the term “money” to denote gold coins.

Ulpianus, On Sabinus, Book I. Women are excluded from all civil or public employments; therefore they cannot be judges, or perform the duties of magistrates, or bring suits in court, or become sureties for others, or act as attorneys. 1A minor, also, must abstain from all civil employments.