[AFRICANUS libro quarto quaestionum. ] §28.2.14.prSi postumus a primo gradu exheredatus, a secundo praeteritus sit, quamuis eo tempore nascatur, quo ad heredes primo gradu scriptos pertineat hereditas, secundum tamen gradum uitiari placet ad hoc, ut praetermittentibus institutis ipse heres existat.
[AFRICANUS, Book 4 of Questions.] If a posthumous child is disinherited in the first degree but passed over in the second degree, even though he is born at that time when the inheritance belongs to the heirs appointed in the first degree, it is nevertheless accepted that the second degree is invalidated to this end, that if the instituted heirs decline, he himself becomes the heir.
immo et si defuncto eo heredes instituti omiserint hereditatem, non posse substitutos adire.
Nay, even if, after his death, the instituted heirs should decline the inheritance, the substitutes cannot enter upon it.
itaque et si a primo gradu exheredatus, a secundo praeteritus, a tertio exheredatus sit et uiuentibus primis et deliberantibus decedat, quaeri solet omittentibus primis aditionem utrum ad eos, qui tertio gradu scripti sint, an potius ad legitimos heredes pertineat hereditas.
Therefore, even if he was disinherited in the first degree, passed over in the second, and disinherited in the third, and dies while those in the first degree are alive and deliberating, it is often asked, when those in the first degree decline to enter, whether the inheritance belongs to those who were appointed in the third degree, or rather to the intestate heirs.
quo et ipso casu rectius existimari putauit ad legitimos eam pertinere: nam et cum duobus heredibus institutis et in singulorum locum facta substitutione a primis exheredatus postumus, a secundis praeteritus fuerit, si alter ex institutis omiserit, quamuis postumus excludatur, non tamen magis substitutum admitti.
In which very case also he thought it more correct to deem that it belongs to the intestate heirs. For also when, two heirs having been instituted and substitution made in place of each individual, a posthumous child was disinherited by those in the first degree but passed over by those in the second, if one of the instituted heirs declines, although the posthumous child is excluded, the substitute is nevertheless no more admitted.
§28.2.14.1Quod uulgo dicitur eum gradum, a quo filius praeteritus sit, non ualere, non usquequaque uerum esse ait: nam si primo gradu heres institutus sit filius, non debere eum a substitutis exheredari: ideoque si filio et Titio heredibus institutis Titio Maeuius substitutus sit, omittente Titio hereditatem Maeuium eam adire posse, quamuis filius secundo gradu exheredatus non sit.
He says that what is commonly said—that the degree from which a son is passed over is not valid—is not everywhere true. For if a son is instituted as heir in the first degree, he does not need to be disinherited by the substitutes. And therefore, if the son and Titius are instituted as heirs, and Maevius is substituted for Titius, if Titius declines the inheritance, Maevius can enter upon it, even though the son has not been disinherited in the second degree.
§28.2.14.2Si quis ita scripserit: 'ille, quem scio ex me natum non esse, exheres esto', hanc exheredationem ita nullius momenti esse ait, si probetur ex eo natus: non enim uideri quasi filium exheredatum esse.
If anyone writes as follows: "Let him, whom I know not to have been born of me, be disinherited," he says that this disinheriting is of no effect if it is proved that he was born of him; for he does not seem to have been disinherited as a son.
cum elogium pater, cum filium exheredaret, proposuisset et adiecisset propter eam causam exheredare, probaturque patrem circa causam exheredationis errasse.
This is when a father, in disinheriting his son, set forth a statement and added that he disinherited him for that reason, and it is proved that the father erred regarding the cause of the disinheriting.