[ULPIANUS libro trigesimo quarto ad edictum. ] §25.3.3.prsiue contra pronuntiauerit, non fore suum, quamuis suus fuerit: placet enim eius rei iudicem ius facere.
[ULPIAN, on the Edict, book 34.]\n\nEven if the judge should pronounce to the contrary, that he will not be his own heir, although he actually was his own heir: for it is accepted that the judge of that matter makes the law.
et ita Marcellus libro septimo digestorum probat, eoque iure utimur. §25.3.3.1Quia Plancianum senatus consultum ad eos partus pertinet qui post diuortium eduntur, aliud senatus consultum temporibus diui Hadriani factum est, ut, etiamsi constante matrimonio partus sit editus, de agnoscendo eo agatur. §25.3.3.2Quid ergo, si quis post mortem patris nascatur auo superstite, in cuius potestate recasurus est, ut si ex filio eius susceptus probetur? uidendum quid dici debeat.
And Marcellus approves this in the seventh book of his Digests, and we use this rule of law.\n\nBecause the Plancian senatus consultum relates to those offspring who are born after a divorce, another senatus consultum was made in the times of the Divine Hadrian, so that, even if the offspring is born while the marriage is still standing, an action may be brought concerning the recognition of him.\n\nWhat then, if someone is born after the death of his father, while his grandfather is surviving, into whose power he will fall back, if he is proved to be begotten of his son? We must see what ought to be said.
et certe probandum est cum auo praeiudicium de partu agnoscendo similiter agendum. §25.3.3.3Quid si hoc ipsum in quaestionem ueniat, utrum in matrimonio an postea editus sit? dicendum est et super hoc ex senatus consultis agendum. §25.3.3.4Et quid sit, si an uxor fuerit disceptetur? et Iulianus Sexto Caecilio Africano respondit locum esse praeiudicio. §25.3.3.5Illud tenendum haec senatus consulta post mortem parentis cessare, si is supersit, in cuius potestate recasuri non sunt.
And certainly it must be approved that a preliminary action concerning the recognition of the child must similarly be brought against the grandfather.\n\nWhat if this very point comes into question, whether he was born during the marriage or afterwards? It must be said that on this matter also action should be brought under the senatus consulta.\n\nAnd what if it is disputed whether she was a wife? And Julian answered Sextus Caecilius Africanus that there is room for a preliminary action.\n\nIt must be held that these senatus consulta cease to apply after the death of the parent, if someone survives into whose power they are not to fall back.
quid ergo est? in petitione hereditatis, quam filius intendit, quaeretur, utrum ex eo natus sit cuius hereditatem petit an non.
What is the case then? In the petition for inheritance which the son brings, it will be inquired whether he was born of him whose inheritance he is seeking or not.
adeo hoc uerum est, ut Iulianus libro nono decimo digestorum scribat, si uiuo patre redditum sit praeiudicium et antequam sententia feratur, pater decesserit, transeundum ad Carbonianum edictum. §25.3.3.6Item haec senatus consulta pertinent ad eos, qui sui heredes adgnascantur: ceterum si forte non sint in potestatem recasuri, uerius est senatus consulta cessare.
This is so true that Julian writes in the nineteenth book of his Digests that if the preliminary action has been granted during the lifetime of the father, and the father dies before the judgment is rendered, one must pass over to the Carbonian Edict.\n\nLikewise, these senatus consulta relate to those who are born as own heirs: but if by chance they are not to fall back into someone's power, it is more correct that the senatus consulta cease to apply.