Ex libro VIII

Dig. 28,7,4Ulpianus libro octavo ad Sabinum. Si qui ita sint instituti: ‘si socii una bonorum meorum permanserint usque ad annos sedecim, heredes sunto’, inutilem esse institutionem secundum verborum significationem Marcellus ait: Iulianus autem, quoniam et ante aditam hereditatem iniri societas potest quasi rei futurae, valere institutionem, quod est verum. 1Idem Iulianus scribit eum, qui ita heres institutus est, si servum hereditarium non alienaverit, caventem coheredi implere condicionem: ceterum si solus heres scriptus sit, sub impossibili condicione heredem institutum videri: quae sententia vera est.

Ulpianus, On Sabinus, Book VIII. If certain heirs should be appointed as follows: “If they remain partners in my property until they reach the age of sixteen years, let them be my heirs”, Marcellus says that an appointment made in language of this kind is void. Julianus, however, holds that such an appointment is valid, since the partnership can be formed for some future purpose, before the estate is entered upon. This is correct. 1Ad Dig. 28,7,4,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 554, Note 8.Julianus also says, where anyone appoints an heir under the condition: “If he does not alienate a certain slave belonging to the estate”, that the condition is fulfilled when the heir furnishes his coheir with security. However, where only one heir is mentioned, he is held to have been appointed under an impossible condition, which opinion is correct.

Dig. 29,2,25Idem libro octavo ad Sabinum. Si quis mihi bona fide serviat servus alienus, iussu meo hereditatem adeundo nihil promovebit nec adquiret mihi, nec fructuarius quidem servus. 1Servus municipum vel collegii vel decuriae heres institutus manumissus vel alienatus adibit hereditatem. 2Si fisci servus sit, iussu procuratoris Caesaris adibit hereditatem, ut est saepe rescriptum. 3Si quis plane servus poenae fuerit effectus ad gladium vel ad bestias vel in metallum damnatus, si fuerit heres institutus, pro non scripto hoc habebitur: idque divus Pius rescripsit. 4Iussum eius qui in potestate habet non est simile tutoris auctoritati, quae interponitur perfecto negotio, sed praecedere debet, ut Gaius Cassius libro secundo iuris civilis scribit: et putat vel per internuntium fieri posse vel per epistulam. 5Sed utrum generaliter ‘quaecumque tibi hereditas fuerit delata’, an specialiter? et magis placet, ut Gaius Cassius scribit, specialiter debere mandare. 6An nominatim de vivi hereditate mandari possit, quaeritur: sed ego non puto recipiendum, ut de vivi hereditate mandetur. plane si rumor fuit Lucium Titium decessisse, poterit ei mandare, ut, si scripsit eum, adeat: aut si clusae adhuc tabulae sunt et sit incertum, an filius scriptus sit heres. 7Sed quid si mandavit, ut hereditatem colligat, an videtur mandasse, ut adeat? quid si ut petat bonorum possessionem? aut ut rem hereditariam distrahat? aut quid si petitam bonorum possessionem ratam habuit, mox filius adeat hereditatem? vel quid si pro herede gerere mandavit, filius adiit hereditatem? an iussu videatur adisse, dubitari potest. immo verius est ex his omnibus aditionem esse introducendam. 8Pater filio ita scripsit: ‘scio, fili, quod pro tua prudentia invigilabis hereditati delatae tibi Lucii Titii’. puto iussu patris adisse. 9Quid si mandavit: ‘si expedit adire, adito?’ ‘si putas expedire adire, adito?’ erit iussu aditum. 10Si ‘coram Titio’ iussit adire, si ‘arbitrio Lucii Titii’, recte puto iussisse. 11Sed si mandavit quasi ex asse instituto et inveniatur ex parte, non puto ex iussu adisse. quod si ex parte iussit, potest ex asse adire. aliter atque si mandavit quasi ab intestato et ex testamento adiit: nam non puto quicquam egisse. at si ex testamento mandavit, poterit et ab intestato, quoniam non fecit deteriorem condicionem patris. idemque et si quasi instituto praecepit et inveniatur substitutus, vel contra. 12Sed si mandavit, ut patris adiret, sit autem et impuberi substitutus, non sufficit iussum. 13Plane si sic mandavit ‘si qua ex testamento Lucii Titii deferatur hereditas’, potest defendi iussu adisse. 14Sed si posteaquam iussit, paenitentiam egit prius quam adiret, nihil agit adeundo. 15Item si se adrogandum dederit prius quam filius adiret, non est adquisita hereditas.

The Same, On Sabinus, Book VIII. When a slave belonging to another, who is serving me in good faith, enters upon an estate by my order, he will commit an act which is void, and he will not acquire the said estate for me, nor will such an act be valid if performed by a slave of whom I am the usufructuary. 1A slave belonging to a municipality, corporation, or a decuria, who is appointed an heir, can enter upon the estate after having been manumitted or alienated. 2If the said slave belongs to the Treasury, he can enter upon the estate by order of the Imperial Steward, as has been frequently stated in rescripts. 3Where it is evident that someone has become a penal slave, by having been condemned to fight with gladiators, or wild beasts, or to work in the mines, and he is appointed an heir, his appointment will be considered as not having been made, as the Divine Pius stated in a Rescript. 4The order of a man who has another under his control does not resemble the authority of a guardian which can be interposed after the transaction has been completed, but should precede the acceptance; as Gaius Cassius says in the Second Book of the Civil Law. He also thinks that this order can be communicated by means of a messenger, or by a letter. 5Ad Dig. 29,2,25,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 596, Note 12.Should the order, however, be given generally, as follows: “Whatever estates may pass to you”, or specifically? The better opinion is (as Gaius Cassius holds) that it should be given specifically. 6The question also arises whether the order can be given expressly with reference to the estate of a man still living. I think that where it is given with reference to the estate of a person who is still living, it should not be obeyed. It is evident that if the report was current that Lucius Titius was dead, or if the will was not yet opened, and it was still uncertain whether the son was designated the heir, the party appointed heir could be ordered to enter upon the estate. 7But what if the order should be given to “acquire the estate”? Would it be held that the party had been directed to enter upon it? What if he should be ordered to “apply for prætorian possession of the estate”, or “to sell the property belonging to it”? Or what if the son should enter upon the estate, after the father had ratified his demand for prætorian possession of the same? Or what if the son should enter upon the estate, after having been ordered to act in the capacity of heir? Can it be doubted that he would be held to have entered upon it by order of his father? Indeed, the better opinion is, that in all these cases, attention should be called to the entry upon the estate. 8A father wrote to his son as follows: “I know, my son, that you will watch with prudence over the estate of Lucius Titius, which has been conferred upon you.” I think that the son enters upon the estate by order of his father. 9What if he ordered, as follows: “Enter upon the estate, if it is expedient for you to do so”; “If you think it is expedient to enter upon the estate, do so”? The entry upon the estate will be by order of the father. 10If a father should order his son to enter upon the estate, “In the presence of Titius”, or with the consent of Lucius Titius, I think that the order is given in accordance with law. 11Where, however, the order is given to a son as heir to the entire estate, and it should be ascertained that he is heir only to a portion of the same; I do not think that he can enter upon it under such an order. But, if his father orders him to accept only a portion of the estate, he can accept the whole of it. The case is different where he orders him to enter upon it as ab intestato, and he does so by virtue of a will, for I think that then his act is not valid; but if the order was to enter upon the estate by virtue of a will, the son can likewise do so ab intestato; since he does not make the condition of his father any worse. The same rule applies where the father directs the son to enter upon the estate as an appointed heir, and it is ascertained that he is a substitute, or vice versa. 12Where, however, a father directs his son to enter upon an estate, he being a substitute of a child under the age of puberty, the order will not be sufficient. 13It is clear that if the order was as follows: “If any estate passes to you by the will of Lucius Titius”, it can be maintained that he can enter upon it under an order of this kind. 14But if after he has given the order, he should change his mind before the son has entered upon the estate, and he does so, his act will be void. 15Likewise, if he should give his son to be arrogated before the latter enters upon the estate, the estate will not be acquired by him.

Dig. 29,2,28Ulpianus libro octavo ad Sabinum. Aristo existimat praetorem aditum facultatem facere debere heredi rationes defuncti ab eo petere, penes quem depositae sunt, deliberanti de adeunda hereditate.

Ulpianus, On Sabinus, Book VIII. Aristo thinks that the Prætor should give the heir who is deliberating with reference to his acceptance of the estate the right to enter upon the same, in order to demand the papers of the deceased from the party with whom they have been deposited.

Dig. 29,2,30Ulpianus libro octavo ad Sabinum. Cum quidam legationis causa absens filium heredem institutum non potuisset iubere adire in provincia agentem, divus Pius rescripsit consulibus subvenire ei oportere mortuo filio, eo quod rei publicae causa aberat. 1Quod dicitur: ‘proximus a filio postumo heres, dum mulier praegnas est aut putatur esse, adire hereditatem non potest: sed si scit non esse praegnatem, potest’ accipe proximus a ventre, qui suum heredem pariturus est. et non solum ad testatos haec verba, verum ad intestatos quoque pertinent. et in eo ventre idem accipias, qui legitimum vel consanguineum pariturus est, quoniam mortis tempore qui in utero est, quantum ad moram faciendam inferioribus et sibi locum faciendum si fuerit editus, pro iam nato habetur. idemque et per bonorum possessionem edictalem denique praetor ventrem mittit in possessionem. 2Sive igitur putem praegnatem sive sit re vera praegnas, quae eum paritura est qui suus futurus est, adire hereditatem non possum, quoniam in eo est, ut rumpatur testamentum, nisi si proponas ventrem institutum vel exheredatum. 3Quod dicitur ‘si putetur esse praegnas’, sic accipiendum est, si dicat se praegnatem. quid ergo, si ipsa non dicat, sed neget, alii dicant praegnatem esse? adhuc adiri hereditas non potest: finge obstetrices dicere. quid si ipse putat solus? si iusta ratione ductus, non potest adire: si secundum multorum opinionem potest. 4Quid ergo si praegnas fuit, cum putaret heres non esse praegnatem et adiit, mox abortum factum est? procul dubio nihil egerit. totiens igitur ei sua praesumptio proficit, quotiens concurrit cum veritate. 5Sed et si ipsa mulier heres instituta sit, quae se praegnatem fingit, adeundo adquiret hereditatem: per contrarium non adquiret, si se putet praegnatem, cum non sit. 6Suum heredem certum est ex asse heredem esse, etsi putat esse praegnatem mulierem, quae non est praegnas. quid si unum in utero habeat, an ex parte dimidia sit heres, sive institutum postumum proponas sive intestatum patrem decessisse? quod et Sextum Pomponium opinatum Tertullianus libro quarto quaestionum refert: putasse enim, sicuti cum vacuo utero suus ex asse heres est, ita et cum unum gerit nec per naturam humanae condicionis alium partum formare potest (quod quidem post certum tempus conceptionis eveniet), ex parte dimidia et ignorantem fore heredem, non ex quarta, ut Iulianus putat. 7Scientia autem vel opinio, si filius familias vel servus instituti sunt, utrum ipsorum an domini vel patris accipienda sit? finge patrem putasse praegnatem, filium certum esse fingere et sic adire, an adquirat hereditatem? puto adquirere: sed contra non adquirere. 8Si certus sum non esse falsum testamentum vel irritum vel ruptum, licet dicatur esse, possum adire hereditatem.

Ulpianus, On Sabinus, Book VIII. Ad Dig. 29,2,30 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 601, Note 3.Where a man absent on an embassy is not able to order his son who was appointed an heir, and is in a province, to enter upon the estate; the Divine Pius stated in a Rescript addressed to the Consuls that relief should be granted him when his son died, for the reason that he was absent on business for the State. 1Where it is said that: “The next of kin to a posthumous child cannot enter upon the estate so long as the woman is pregnant, or is thought to be so, but if he knows that she is not pregnant, he can enter upon it”; it is understood that this is applicable to the next of kin to the unborn child, who, when born, will be the proper heir of the deceased. These words not only have reference to persons dying testate, but also to intestates. And the same must be understood to apply to an unborn child who will be either the proper heir, or a blood relative; since the former at the time of the death is considered as already born, so far as deferring the succession of more remote heirs and making a place for itself therein if it should be brought forth, is concerned. The same rule applies to the possession of property granted by the Prætorian Edict. Finally, the Prætor places the unborn child in possession of the estate. 2Therefore, if I think that the woman is pregnant, or if she actually is pregnant, and the child which she is to bring forth will be the proper heir of the deceased, I cannot enter upon the estate, as the will is liable to be broken by the birth of the heir, unless you suppose the case that the unborn child is either appointed an heir, or disinherited. 3The statement, “If he thinks that she is pregnant”, must be understood to mean if she asserts she is in that condition. But what if she should not say that she is pregnant, but denies it, and others say that she is in that condition? The estate cannot then be entered upon, even though you may suppose midwives to confirm the existence of her pregnancy. What if the heir alone thinks that the woman is pregnant? If he has good reason for thinking so, he cannot enter upon the estate; but if his opinion agrees with that of many others he can do so. 4But what if the woman was pregnant, and the heir thought that she was not, and entered upon the estate, and afterwards an abortion was produced? There is no doubt whatever that his act will be void. Hence this opinion will benefit the heir as often as it agrees with the truth. 5Where, however, the woman herself is appointed heir, and pretends to be pregnant, she will acquire the estate by entering upon it. On the other hand, she will not acquire it, if she thinks she is pregnant and this is not the case. 6Ad Dig. 29,2,30,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 87, Note 2.It is certain that a proper heir is entitled to the entire estate, even though he thinks that the woman is pregnant, when this is not true. What course must be pursued if she is pregnant of one child? Will it be heir to half of the estate, whether you suppose the case of the appointment of a posthumous child, or that the father died intestate? This opinion which Tertullianus states in the Fourth Book of Questions, was held by Sextus Pomponius; for he thought that when the woman was not pregnant the proper heir was entitled to the whole estate; as when she is only pregnant of one child, a second cannot be formed in accordance with the nature of the human race, for this only happens a certain time after conception, and the heir already born, even though he was not aware of the fact, will be entitled to half, and not to a fourth of the estate, as is held by Julianus. 7When a son under paternal control or a slave is appointed an heir, shall the knowledge or opinion of the master or the father as to the pregnancy be adopted? Suppose the father thinks that the woman is pregnant, and the son is certain that she is not, and, in accordance with his belief, he enters upon the estate, will he obtain it? I think that he will, but in the opposite case I hold that he will not do so. 8If I am certain that a will is not forged, void, or broken, although it is said to be, I can enter upon the estate.

Dig. 29,2,32Ulpianus libro octavo ad Sabinum. Heres institutus si putet testatorem vivere, quamvis iam defunctus sit, adire hereditatem non potest. 1Sed et si scit se heredem institutum, sed utrum pure an sub condicione ignoret, non poterit adire hereditatem, licet pure heres institutus sit, et sub condicione licet paruerit condicioni. 2Sed et si de condicione testatoris incertus sit, pater familias an filius familias sit, non poterit adire hereditatem, etsi eius condicionis sit in veritate, ut testari potuerit.

Ulpianus, On Sabinus, Book VIII. An appointed heir cannot enter upon the estate if he thinks that the testator is living, even though he may already be dead. 1But even if he knows that he has been appointed an heir, but is ignorant as to whether his appointment was absolute or conditional, he cannot enter upon the estate, even though he may have been appointed heir absolutely, or if he was appointed under a condition, even though he may have complied with it. 2Where, however, the heir is uncertain as to the condition of the testator, namely, as to whether he was the head of a household or a son under paternal control, he cannot enter upon the estate, even though his condition was in fact such as to enable him to make a will.

Dig. 29,2,34Ulpianus libro octavo ad Sabinum. Sed et si de sua condicione quis dubitet, an filius familias sit, posse eum adquirere hereditatem iam dictum est. cur autem, si suam ignoret condicionem, adire potest, si testatoris, non potest? illa ratio est, quod qui condicionem testatoris ignorat, an valeat testamentum dubitat, qui de sua, de testamento certus est. 1Sed et si cum esset pure institutus, putavit sub condicione et impleta condicione, quam iniectam putavit, adiit, an possit adquirere hereditatem? consequens est dicere posse eum adire, maxime cum haec suspicio nihil ei offuerit nec periculum adtulerit. facilius quis admittet, si quis pure institutus putavit se sub condicione institutum condicionemque impletam quam in eventum putabat: nam in nullo haec suspicio offuit.

Ulpianus, On Sabinus, Book VIII. Where anyone is in doubt as to his own condition and whether he is a son under paternal control, it has already been stated that he can acquire an estate. But why can he enter upon an estate if he is ignorant of his own condition, but if he is ignorant of that of the testator he cannot do so? The reason is that he who is ignorant of the condition of the testator does not know whether his will is valid or not; but he who is aware of his own is certain of the validity of the will. 1If an heir was appointed absolutely, but thinks that he was appointed under a condition, and, after complying with it, enters upon the estate, can he acquire it? It follows that he can legally enter upon it, especially when the opinion which he entertains places no obstacle in his way, nor causes him any risk. This would be more readily admitted, where someone who was absolutely appointed thought that he was appointed under a condition, and that the condition which depended upon some event had been fulfilled; for this opinion presented no obstacle to his acceptance of the estate.

Dig. 38,6,3Ulpianus libro octavo ad Sabinum. Bonorum possessio potest peti ab intestato, si certum sit tabulas non extare septem testium signis signatas.

Ulpiamis, On Sabinus, Book VIII. Prætorian possession of an estate can be demanded on the ground of intestacy, when it is certain that the will has not been signed by at least seven witnesses.

Dig. 43,16,13Ulpianus libro octavo ad Sabinum. Neque unde vi neque aliud interdictum famosum est.

Ulpianus, On Sabinus, Book VIII. Neither the interdict Unde vi nor any other interdict implies infamy.

Dig. 47,20,2Ulpianus libro octavo ad Sabinum. Stellionatus iudicium famosum quidem non est, sed coercitionem extraordinariam habet.

Ulpianus, On Sabinus, Book VIII. A judgment for this offence does not brand anyone with infamy, but it is followed by extraordinary punishment.

Dig. 50,7,1Ulpianus libro octavo ad Massurium Sabinum. Legatus municipalis si deseruerit legationem, poena adficietur extraordinaria, motus ordine, ut plerumque solet.

Ulpianus, On Massurius Sabinus, Book VIII. When a municipal envoy abandons his office, he is generally subjected to an ordinary penalty, and dismissed from his order.

Corpus iurisprudentiae Romanae

Digesta Iustiniani Augusti

Ad Massurium Sabinum libri

Ex libro VIII