[TRYPHONINUS libro uicensimo disputationum. ] §28.2.28.prFilius a patre, cuius in potestate est, sub condicione, quae non est in ipsius potestate, heres institutus et in defectum condicionis exheredatus decessit pendente etiam tunc condicione tam institutionis quam exheredationis.
[TRYPHONINUS, Disputations, Book 20] A son, who was in the power of his father, having been appointed heir under a condition which was not in his own power, and disinherited in the event of the failure of the condition, died while the condition of both the institution and the disinheritance was still pending.
dixi heredem eum ab intestato mortuum esse, quia dum uiuit, neque ex testamento heres neque exheredatus fuit.
I said that he died intestate as heir, because while he lived, he was neither heir nor disinherited under the will.
herede autem scripto ex parte filio coheres post mortem filii institui potest.
However, when a son has been written as heir to a part, a co-heir can be appointed after the death of the son.
§28.2.28.1Filius familias miles de castrensi peculio fecit testamentum habens filium in eiusdem potestate.
A soldier who was a son-in-power made a will regarding his military peculium, having a son under the same power.
cum militare desisset, patre eodemque auo defuncto quaesitum est, an rumpetur eius testamentum.
When he had ceased to serve as a soldier, his father (who was also the grandfather) having died, it was asked whether his will would be broken.
non quidem adoptauit nec hodie ei natus est filius nec priore subducto de potestate suo herede ulterior successit in proximum locum: sed tamen in potestate sua habere coepit, quem non habebat simulque pater familias factus est et filius sub eius reccidit potestate: rumpetur ergo testamentum.
He indeed did not adopt anyone, nor was a son born to him today, nor, upon the removal of a prior self-successor from power, did a more remote successor succeed to the next place; but yet he began to have in his power one whom he did not have, and at the same time he became a head of household and his son fell back under his power; therefore, the will will be broken.
sed si heres sit institutus uel exheredatus iste eius filius, non rumpitur, quia nullo circa eum nouo facto, sed ordine quodam naturali nactus est potestatem.
But if that son of his was appointed heir or disinherited, it is not broken, because no new fact has occurred concerning him, but he acquired power by a certain natural order.
§28.2.28.2Si quis ex certa uxore natum scribit heredem, in periculum rumpendi testamentum deducit ex alia susceptis liberis.
If anyone writes as heir one born of a specific wife, he brings his will into danger of being broken by children begotten of another woman.
§28.2.28.3Si quis eo tempore, quo nondum eius uxor esse posset, testator natum ex ea scripsit heredem, an postea contracto licito matrimonio natus heres ex testamento esse possit, quaeritur: ueluti si scribas hodie heredem, qui tibi ex Titia natus erit, quando Titia ancilla uel minor annis uiginti quinque ea, cuius pater tuus tutelam administrauit aut tutor tu ipse fuisti, postea Titia uxor iusta tibi fuerit uel libertatem adepta aut tempore annorum uiginti quinque et utilis anni et rationum allegatione, an natus heres esse possit? nemo certo dubitabit ex Titia, quae tunc propter tenorem aetatis uxor duci non potuit, quando testamentum fiebat, natum postea ea uxore ducta heredem esse posse.
If, at a time when a certain woman could not yet be his wife, a testator wrote as heir one born of her, it is asked whether a child born after a lawful marriage has been subsequently contracted can be an heir under the will. For example, if you write today as heir the one who shall be born to you from Titia, when Titia is a slave-woman or under twenty-five years of age—she whose guardianship your father administered or you yourself were the guardian—and later Titia becomes your lawful wife, or has obtained her freedom, or has reached the age of twenty-five and through the "useful year" and the presentation of accounts, can the child born be an heir? No one will certainly doubt that a child born after she was taken as a wife from Titia—who, at the time the will was being made, could not be taken as a wife because of her age—can be an heir.
et generaliter nato post testamentum heredi scripto aditus est ad hereditatem, in qualicumque statu testamenti faciendi tempore fuit quae postea testatori ciuiliter nupta est.
And generally, a way of entry to the inheritance is open to a written heir born after the will, regardless of the status, at the time of making the will, of the woman who was subsequently civilly married to the testator.
§28.2.28.4Quid autem, si filium post testamentum natum ex besse, filiam autem post testamentum natam ex triente scripsit heredem nec ullum coheredem dedit nec substituit inuicem alium? unus natus solus ex testamento fit heres.
What if, however, he wrote as heir a son born after the will to the extent of two-thirds, and a daughter born after the will to the extent of one-third, and gave no co-heir nor substituted them for each other? If only one is born, that one alone becomes heir under the will.