[IDEM libro trigesimo nono ad Sabinum. ] §26.2.16.prSi quis ita dederit 'filiis meis tutorem do', in ea condicione est, ut tam filiis quam filiabus dedisse uideatur: filiorum enim appellatione et filiae continentur.
[THE SAME, from the thirty-ninth book on Sabinus.] If anyone has designated in this manner, "I give a tutor to my sons," it is in such a condition that he is deemed to have given him to his daughters as well as to his sons; for daughters also are included under the appellation of "sons." If anyone has given a tutor to "his son," and has several sons, is he deemed to have given him to all his sons?
§26.2.16.1Si quis filio tutorem dederit et plures filios habeat, an omnibus filiis dedisse uideatur? et de hoc Pomponius dubitat: magis autem est, ut omnibus dedisse uideatur.
Pomponius doubts on this point; however, it is more correct to hold that he is deemed to have given him to all.
§26.2.16.2Si quis liberis tutores dederit uel filiis et habeat quosdam apud hostes, etiam ipsis dedisse uidebitur, si non aliud aperte probetur testatorem sensisse.
If anyone has given tutors to his "children" or "sons," and has some of them among the enemy, he will be deemed to have given them to these as well, unless it is clearly proved that the testator intended otherwise.
§26.2.16.3Si quis cum ignoraret se filium Titium habere, filiis tutores dederit, utrum his solis dedisse uideatur, quos in potestate scit an ei quoque, quem ignorauit se habere? et magis est, ut huic dedisse non uideatur, licet nomen filiorum admittit et ipsum: sed quia de ipso non sensisset, dicendum est cessare in personam eius dationem.
If anyone, being ignorant that he had a son named Titius, has given tutors to his "sons," is he deemed to have given them only to those whom he knows to be in his power, or also to him whom he did not know he had? It is more correct to hold that he is not deemed to have given them to this one, although the name of "sons" includes him as well; but since he had not thought of him, it must be said that the designation is of no effect in regard to his person.
§26.2.16.4Proinde et si certus fuit filium decessisse, qui supererat, idem erit dicendum: nec enim uidetur ei dedisse, quem obisse credebat.
Accordingly, the same must be said even if he was certain that the son, who actually survived, had deceased; for he is not deemed to have given a tutor to one whom he believed to have died.
§26.2.16.5Si postumis dederit tutores hique uiuo nascantur, an datio ualeat? et magis est, ut utilis datio fiat etiam si uiuo eo nascantur.
If he has given tutors to posthumous children, and these are born during his lifetime, is the designation valid? It is more correct to hold that the designation becomes effective, even if they are born during his lifetime.