The Same, On Sabinus, Book XXVI. Where a father is insane, his child, nevertheless, remains under his control. The case is the same with all ascendants who have children subject to their authority, for the right of paternal control having been established by custom, no one can cease to have persons under it except where children are released from the same as they are under certain circumstances, and there is no question whatever that they still remain subject to his authority. For this reason a father not only, retains under his control those children whom he begat before he became insane, but also any who were conceived before his insanity developed, and were born while it existed. Moreover, if his wife conceives while he is insane, it must be considered whether the child is born under his control or not; for although an insane person cannot marry, he can still retain his matrimonial condition; and since this is the case he will have his son under his control. In like manner, if his wife becomes insane, a child conceived by her previous to her insanity is born under his control; but if it is conceived while she was insane and her husband was not, it undoubtedly is born under his control, for the reason that the marriage still exists. But if both husband and wife are insane, and she then conceives, the child is born under the control of its father; for it is presumed that insane persons still have some will remaining; and, as the marriage relation continues while one or the other is insane, it also does so when both are in that condition. 1Moreover, an insane father retains his paternal authority to such an extent that everything acquired by his son belongs to him.

Ulpianus, On Sabinus, Book XXVI. When the father of a family is adopted, all the property which belongs to him and all that can be acquired is, by silent operation of law, transferred to his adoptive father; and, moreover, his children who are under his control follow him, as well as those who may return from captivity under the law of postliminium, and those who were unborn when he was arrogated are in like manner brought under the control of the arrogator. 1Where a man has two sons, and a grandson by one of them, and desires to adopt the grandson as born of the other son, he can do so if he emancipates him and adopts him as if he were born to the other son, for he does this as if he were a stranger, and not his grandfather; and for whatever reason he can adopt anyone born of a stranger he can adopt him as it were born of another son. 2In arrogation it must be ascertained whether the arrogator is under sixty years of age, because if he is, he should rather devote himself to the procreation of children; unless, indeed, disease or weakness of any kind, or any other just cause for arrogation exists, as, for instance, if he desires to adopt some person related to himself. 3Again, no one should arrogate several children, unless for a good reason. Nor should he adopt the freedman of another, nor anyone older than himself.

Ulpianus, On Sabinus, Book XXVI. Anyone who administers the office of guardian, or has the curatorship of another, is not permitted to arrogate him, so long as the minor is less than twenty-five years of age, for fear that he may have arrogated him to avoid rendering an account. Inquiry must also be made as to whether the reason for the arrogation is not an infamous one. 1Arrogation of wards is only permitted to those who, induced by natural relationship or great affection adopt them; and it is prohibited to others lest it may be placed in the power of guardians to terminate their trust, and invalidate the substitution made by the parent. 2It is necessary, in the first place, to learn the amount of property belonging to the ward, as well as that of the party who desires to adopt him; so that, by comparing the two, an opinion may be formed as to whether an adoption would be advantageous to the ward. Then the mode of life of the party, who desires to bring the ward into his family should be investigated; and third, his age must be considered, so that it may be determined whether he had not better pay attention to the procreation of children, than to bring under his control some one belonging to another family. 3Moreover, it should be taken into consideration, whether he who already has one or more children ought to be permitted to adopt another, in order that the expectations of those begotten in lawful marriage may not be diminished, which expectations every child prepares for itself by respectful behavior; or whether the ward thus adopted would obtain less than he was worthy of. 4Sometimes the adoption of a child who is more wealthy by a person who is poor is permitted; if the latter is of a thoroughly temperate life, or his affection is honorable and publicly known. 5It is, however, customary to give security in cases of this kind.

Ulpianus, On Sabinus, Book XXVI. By these words of the bond which must be furnished by the arrogating party, “to those entitled to said property”, there is no doubt that it was intended to include any manumissions made by a second will; and especially where a slave was substituted as heir, and also to protect the interests of legatees. 1If this bond is not given, an equitable action will lie against the arrogator.

Ulpianus, On Sabinus, Book XXVI. Where an arrogator dies leaving an adopted son who is under age, and he dies afterwards before reaching puberty, will the heirs of the arrogator be liable? It must be held that the heirs also are bound to deliver up the property of the party arrogated, and the fourth part of the estate besides. 1The question arises whether the arrogator can substitute another heir to the adopted minor son? I think that the substitution cannot be admitted, unless merely with reference to the fourth part of the estate of his adoptive father to which he is entitled; and that it only extends to the time of puberty. But if he should leave his property in trust to be delivered at a certain time, a trust of this kind should not be admitted; for this share does not vest in him by the will of his father but by an Imperial provision. 2All these rules are applicable whether anyone has arrogated a boy under puberty as a son, or as a grandson.

Ulpianus, On Sabinus, Book XXVI. A father can manumit before a son who is under his control, if the son is a Prætor.

Ulpianus, On Sabinus, Book XXVI. Nor can adoptions take place before him, as in fact no legal action can be brought in his court.

Ulpianus, On Sabinus, Book XXVI. A Governor can adopt before himself, just as he can emancipate a son, or manumit a slave.

Ulpianus, On Sabinus, Book XXVI. Anyone can adopt in the tribunal of the Juridicus, because the right of legal action is granted him.

Ulpianus, On Sabinus, Book XXVI. The curator of an insane person can both give and refuse the management of the peculium to the slave, as well as to the son of the said insane person.

Ulpianus, On Sabinus, Book XXVI. Where a grandfather is insane and his grandson wishes to marry, the consent of his father will be absolutely necessary; but if his father should be insane, the consent of his grandfather will be sufficient, if the latter is of sound mind. 1A son can marry if his father is in the hands of the enemy, and does not return within three years.

Ulpianus, On Sabinus, Book XXVI. If I have a wife, and, after having been repudiated by me, she marries Seius, whom I subsequently adopt, the marriage is not incestuous. 1A legal marriage cannot be contracted between me and a woman betrothed to my father, although she cannot properly be said to be my stepmother. 2On the other hand, a woman who is betrothed to me cannot marry my father, although she cannot properly be called his daughter-in-law. 3If my wife, after having been divorced, should marry another man, and have a daughter by him, Julianus thinks that the latter is not my stepdaughter, still, I must not marry her. 4I can marry the daughter of my adopted sister, for she is not my relative, as no one becomes an uncle by adoption. Those relationships are only formed by adoption which are legitimate, that is to say, which possess the rights of agnation. On the same principle, I can marry the sister of my adoptive father, if she was not born of the same mother as he.

Ulpianus, On Sabinus, Book XXVI. Julianus asks in the Eighteenth Book of the Digest whether a woman who has become insane can repudiate her husband, or be herself repudiated; and he says that an insane woman can be repudiated, because she is in the position of a person who has no knowledge of anything, but that she cannot repudiate her husband on account of her madness, nor can her curator do so, but her father can repudiate him. He would not have treated the question of repudiation unless it had been established that the marriage would continue to exist even though the woman was insane. This opinion seems to me to be correct.

The Same, On Sabinus, Book XXVI. Services appertaining to a trade, and others which are the same as the payment of money, pass to the heir; but those relating to the duties of the freedmen do not pass to him.