The Same, On Sabinus, Book IX. We define a son to be a male child born of a man and his wife. But if we suppose the husband was absent, for example for the term of ten years, and on his return finds a child a year old in his house, our opinion coincides with that of Julianus, that this is not the son of the husband. Nevertheless, Julianus says, it ought not to be tolerated that a man, who has lived constantly with his wife, should refuse to acknowledge his son as not being his own. It appears to me, however, (and this Scævola also holds), that if it should appear that a husband had not cohabited with his wife for some time, because of disease, or for some other reason, or if he was in such a condition of ill health that he could not procreate, a child born in his house, although this was known to the neighbors, is not his son.

Ulpianus, On Sabinus, Book IX. When it is said that the birth of a child breaks a will, the term “birth” must be understood to also apply where it has been taken from its mother’s womb by means of a surgical operation. For in this case a child breaks a will, provided it is born under paternal control. 1But what if the child should be born deformed, but still of sound mind; would the will be broken in this instance? It must be held that it would be.

Ulpianus, On Sabinus, Book IX. Where an heir has been appointed under the condition: “If he should erect a monument to the testator within three days after his death”, and the monument cannot be completed in three days, it must be said that the condition vanished, as being impossible.

The Same, On Sabinus, Book IX. Where a will is executed in accordance with military law, even though the testator may be ignorant that his wife was pregnant, or, being aware of the fact, he does this with the intention that if a child should be born to him, it shall be disinherited, the will is not broken.

Ulpianus, On Sabinus, Book IX. The same rule must be said to apply where a soldier who had a son born to him in his lifetime preferred to die without making any alteration to his will; for, in accordance with military law, he is held to have renewed his will. 1This was stated in a Rescript by the Divine Pius with reference to a man who executed a will while he was a civilian, and afterwards became a soldier; for this will was valid by military law, if such was the desire of the soldier.

The Same, On Sabinus, Book IX. Where anyone has been appointed an heir to a portion of an estate, and was afterwards substituted for Titius, his co-heir, and acted in the capacity of heir before the estate vested in him by virtue of the substitution; he will also be heir on account of the substitution; since the share of his co-heir accrued to him without his consent. I hold that the same rule will apply where a son under paternal control or a slave, by order of his father or master, enters upon an estate, and, after having been emancipated or manumitted, acquires it by reason of the substitution, for they become heirs through the effect of the preceding appointment. 1Where a father, who was excluded on account of the condition imposed upon him not having been fulfilled, orders his son to enter upon the estate, it must be held that he cannot, by this means, obtain his share. 2But when he orders one of two sons to enter upon the estate, he must also order the other to do so.

Ulpianus, On Sabinus, Book IX. Ad Dig. 31,1 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 633, Note 17.A legacy dependent upon the will of a third party can be granted in the form of a condition; for what difference does it make where a bequest is made to me, “If Titius should ascend to the Capitol,” or “If he should be willing”? 1Where, however, a legacy is bequeathed to a male or female ward, dependent upon the judgment of his or her guardian, and no condition or time is provided with reference to the legacy, as it is established that where a legacy is bequeathed by will dependent upon the judgment of a third party, it is understood to have been left to the discretion of a good citizen, and when this is done what was inserted in the legacy fixes, as it were, an amount proportionate to the value of the estate.