The Same, On Sabinus, Book IV. A direct heir can also be appointed under a condition. The son of the testator must, however, be excepted, because he cannot be appointed under any condition whatsoever. He can, indeed, be appointed under a condition which it is in his power to carry out, and on this opinion all authorities are agreed; but will the appointment take effect if he fulfills the condition, or will it do so if he should not fulfill it, and dies? Julianus thinks, where a son has been appointed heir under such a condition, that he cannot be removed from the succession, even if he should not comply with the condition, and therefore when he is appointed in this way and has a co-heir, the latter is not obliged to wait until the son complies with the condition; since, although the latter, by not complying with it, can render his father intestate, there is no doubt that the co-heir should wait. This opinion seems to me to be correct, so that where a son is appointed under a condition, compliance with which depends upon his will, he cannot by avoidance render his father intestate. 1I think that, generally speaking, a question of fact is involved in the case where a condition is, or is not, dependent upon the power of the son to carry it out. For a condition like this: “If he should go to Alexandria”, does not depend upon the will of the son, if the weather should be severe, but it may depend upon it where the condition was imposed upon a person who only lived a mile from Alexandria. The following condition: “If he should pay ten aurei to Titius”, presents a difficulty, if Titius should be absent upon a long journey. Hence, recourse must be had to the general definition of a condition which can be complied with by the party in question. 2If, however, after the testator appointed his son his heir under a condition which the latter was able to carry out, or where he appointed a stranger, I think that the substitute cannot become an heir during the lifetime of the son, but can after his death; and it is not necessary for the son to be disinherited by the appointment of the substitute. And even if the disinheritance should be made it would be void; for we have shown elsewhere that where this takes place after the death of the son it is invalid. Therefore, we are of the opinion that where a son has been appointed under such a condition, and is under the control of his father, he does not need to be disinherited from the following degrees; otherwise he must also be disinherited by the appointment of a co-heir.

Ulpianus, On Sabinus, Book IV. Where a certain time is mentioned in the condition, for instance: “If he goes up to the Capitol within thirty days”; it can be said that if he does not comply with the condition, the son will be excluded from, and the substitute will be admitted to the succession. This is the result of the opinion of Julianus and myself. 1The grandsons and other successors of the testator, who, when appointed, do not break the will under the Lex Velleia, can be appointed under any condition whatsoever, although they occupy the position of a son. 2We are accustomed to say that anything which occurs in the intermediate time does not injuriously affect the heir; for example, where the party appointed is a Roman citizen, and becomes a foreigner during the lifetime of the testator, and afterwards recovers his Roman citizenship, what has happened to him in the meantime does not prejudice his rights. Where a slave belonging to another is appointed an heir, and afterwards is delivered to another slave belonging to the estate, and is then acquired by a stranger through usucaption, his appointment as heir is not annulled. 3When a master appoints a slave, owned by him in common with another, his heir with the grant of his freedom, and ransoms him from his joint-owner, he becomes a necessary heir. Where, however, the slave is substituted for a minor, and the latter purchases the share of the other joint-owner, Julianus says that the said slave does not become a necessary heir. 4It is asked by Julianus whether this slave, appointed heir with a grant of his freedom, can subsequently be deprived of it by means of a codicil. He holds that in the case where the said slave becomes a necessary heir, any deprivation of his freedom will not be valid, for he would be compelled to deprive himself of it; as where a slave is appointed an heir, he receives his freedom from himself. This opinion is reasonable, for as he cannot bequeath his freedom to himself, so also he cannot deprive himself of it.

Ulpianus, On Sabinus, Book IV. Where a father appoints a substitute for his children who have not reached the age of puberty, he usually does so absolutely, or under some condition. He does so absolutely when he says: “If my son should die before reaching the age of puberty, let Seius be my heir.” Either Seius is here appointed an heir, and is appointed a substitute for a minor without any condition, or he is merely substituted. But if the testator substitutes an heir who has been appointed, that is to say as follows, “If he should be my heir”; he does not become the heir by reason of a substitution, unless he was the heir by appointment. Such a substitution resembles the following one, namely, “Whoever will have been my heir in accordance with what has been previously stated”; for this substitution contains a condition similar to the former one. 1These words: “Let him be heir to my son under the age of puberty who would have been my own heir,” have the following meaning, that not every one who might be the heir of the father can be held to be substituted, but only the testamentary appointee. Therefore, neither a father who becomes an heir through his son, nor a master who becomes one through his slave, is admitted to the substitution; nor can the heir of the heir be admitted, because these parties are not entitled to the estate through the wish of the testator. Substitutes have a right to the same shares to which they would be entitled out of the estate of the head of the family himself.

Ulpianus, On Sabinus, Book IV. Where, however, several parties have been substituted as follows: “Whoever shall be my heir in accordance with what has been previously stated”, and then some of them die after having become the heirs of their father, the surviving heirs, in accordance with the substitution, can only take that portion of the estate to which they are entitled pro rata by their appointment, and no one will be entitled to it as a representative of the deceased heirs. 1Those whom I can appoint my own necessary heirs, I can also substitute as the heirs of my son, my slave, or my brother, even though they are not yet born. Therefore, a posthumous child can be the necessary heir of his brother. 2A certain man was substituted by the testator for a child not yet arrived at puberty, and who had been appointed heir to an entire estate. If the son becomes the heir of his father, can the substitute separate the two estates, so that he may take that of the son, but not that of the father? He cannot do so; for he must either accept or reject the estate of both, because they are undivided. 3Ad Dig. 28,6,10,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 559, Note 23.The same rule applies if a father should appoint me heir to one portion of his estate, and his son to another portion, and I should reject the bequest of the father, for I cannot have that of the son. 4Where anyone is appointed sole heir to an estate, and, having been substituted for a disinherited son, rejects the estate of the father, as he was not substituted, he cannot acquire the estate of the son; for the will of the son will not be valid, unless he accepted the estate of his father, since, in order to establish the validity of the substitution, the will must have been so drawn that the estate could be entered upon by the heir. 5Whatever comes into the hands of the pupillary substitute after the death of the testator belongs to him, for the testator did not substitute him for his own estate, but for that of the minor; as anyone can make a substitution for a disinherited son, unless you give as an example the case of a soldier who substitutes an heir for his son, with the intention that only such property as would have come into the hands of the son will belong to the substitute. 6We also hold that, in the case of a minor who has been arrogated, the property to which he would have been entitled if this had not taken place will not belong to his substitute, but that alone which the arrogator himself gave him; unless we make the distinction that the fourth part which, in accordance with the terms of the Rescript of the Divine Pius, he is obliged to leave him, cannot be acquired by the substitute. Scævola, however, holds in the Tenth Book of Questions that the arrogator should be permitted to do this, which opinion is reasonable. I, however, go still further, and think that the substitute will be entitled to any property which has been acquired by reason of the adoption, as for instance, where a friend or relative of the arrogator left anything to the heir. 7No one who is appointed, and at the same time substituted for himself, will gain anything without a change of parties; but this occurs when there is only one degree. Where, however, there are two degrees, it can be said that the substitution will be valid, as Julianus holds in the Thirtieth Book of the Digest. Should the testator make the appointment of an heir, when Titius is his co-heir, in the following terms: “If Stichus should not be my heir, let him be free and be my heir”, the substitution will not be valid. But if he should say, “If Titius should not be my heir, then let Stichus be free, and be heir to his share”, there are two degrees of substitution, and therefore if Titius should reject his portion of the estate, Stichus will become free and the heir of the testator.

The Same, On Sabinus, Book IV. Soldiers can make a substitution for their heirs, but only with reference to such property as they have acquired by their wills.

Ulpianus, On Sabinus, Book IV. If anyone should be appointed an heir to several portions of the same estate, he cannot accept some of them and reject the others.

The Same, On Sabinus, Book IV. The following words of a testator: “Whoever of the parties above mentioned shall be my heir,” or, “If Seius should be my heir,” or, “If he should enter upon my estate,” any trust subsequently bequeathed will not, for this reason, be conditional.

Ulpianus, On Sabinus, Book IV. Where freedom is granted to a slave several times in a will, that disposition will prevail by which he can best obtain his freedom.

Ulpianus, On Sabinus, Book IV. We understand the position of the slave who is to be free under a condition to be such that, whether he is delivered after having been sold, while still retaining the hope of his freedom, or whether he has been acquired for his own benefit by usucaption, or whether when he is manumitted, he does not abandon the expectation of becoming the freedman of the deceased. The slave is not placed in such a position unless the estate has been entered upon by one of the heirs. But if he should be alienated, or acquired by usucaption, or manumitted before the estate is entered upon, his hope of the freedom bequeathed to him will be lost. 1Where, however, freedom has been left to a slave under a pupillary substitution, will he become conditionally free during the lifetime of the minor, after the estate of his father has been accepted? Cassius denies that he will; but Julianus holds the opposite opinion, which is considered the more correct one. 2Julianus further says that if a slave is bequeathed to the heir of the father, and, in the pupillary substitution he is ordered to be free, the grant of freedom will take precedence. 3If a slave is appointed heir to half of the estate, with the grant of his freedom conditionally, by the first will, will he occupy the position of a slave, who is to be conditionally free, so that, if his co-heir enters upon the estate, he cannot under the circumstances be acquired by usucaption? He cannot occupy the position of a slave to be conditionally free, as he received freedom from himself. It is clear that it must be held that he will occupy the position of a slave to be conditionally free, if the condition under which he was appointed heir should not be complied with; in which case, according to Julianus, he will obtain his liberty because he is not held to have obtained it from himself but from his co-heir. 4In whatever degree a slave may have been substituted for a minor, with the bequest of his freedom, he occupies the position of a necessary heir. This opinion has been adopted on account of its convenience, and we approve it. Celsus, also, in the Fifteenth Book, thinks that a slave who is substituted with a bequest of his freedom occupies the position of one who is to be conditionally free.

The Same, On Sabinus, Book IV. Property forming part of an estate cannot be acquired by the heir through a slave belonging to the same estate, and still less can the estate itself be acquired in this way.

Ulpianus, On Sabinus, Book IV. A slave jointly owned by two persons cannot stipulate for himself, although it is well established that he can do so for his master, as he does not acquire directly for his master, but acquires an obligation through himself for his benefit.