[SCAEuOLA libro sexto quaestionum. ] §28.2.29.prGallus sic posse institui postumos nepotes induxit: 'Si filius meus uiuo me morietur, tunc si quis mihi ex eo nepos siue quae neptis post mortem meam in decem mensibus proximis, quibus filius meus moreretur, natus nata erit, heredes sunto'.
[SCAEUOLA, Questions, Book 6] Gallus introduced that posthumous grandchildren could be appointed in this way: 'If my son dies during my lifetime, then if any grandson or granddaughter is born to me from him after my death within the next ten months in which my son died, let them be heirs.' Some rightly believe that it should be admitted, even if he does not explicitly mention the death of the son, but simply appoints them, so that it is valid in that case which can be conceived from the words.
§28.2.29.1Quidam recte admittendum credunt, etiamsi non exprimat de morte filii, sed simpliciter instituat, ut eo casu ualeat, qui ex uerbis concipi possit.
It must be believed that Gallus thought the same also concerning a great-grandson, so that the testator says: 'If a grandson dies during my lifetime, then whoever is a great-grandson from him,' and so forth.
§28.2.29.2Idem credendum est Gallum existimasse et de pronepote, ut dicat testator: 'Si me uiuo nepos decedat, tunc qui ex eo pronepos' et cetera. §28.2.29.3Sed et si uiuo filio iam mortuo pronepote, cuius uxor praegnas esset, testamentum faceret, potest dicere: 'Si me uiuo filius decedat, 'tunc qui pronepos'.
But also if, while the son is living and the great-grandson [read: grandson] is already dead, whose wife was pregnant, he should make a will, he can say: 'If my son dies during my lifetime, then whoever is a great-grandson...' What if both the son and the grandson are alive, could he formulate it as 'both having died during his lifetime, then whoever is born a great-grandson'?
§28.2.29.4Num si et filius et nepos uiuat, concipere 'utrisque mortuis uiuo se, 'tunc qui pronepos nasceretur'? quod similiter admittendum est, ita sane, si prius nepos, deinde filius decederet, ne successione testamentum rumperetur.
This is likewise to be admitted, provided indeed that the grandson dies first, and then the son, lest the will be broken by succession.
§28.2.29.5Et quid si tantum in mortis filii casum conciperet? quid enim si aquae et ignis interdictionem pateretur? quid si nepos, ex quo pronepos institueretur, ut ostendimus, emancipatus esset? hi enim casus et omnes, ex quibus suus heres post mortem scilicet aui nasceretur, non pertinent ad legem Uelleam: sed ex sententia legis Uelleae et haec omnia admittenda sunt, ut ad similitudinem mortis ceteri casus admittendi sint.
And what if he formulated it only in the event of the son's death? For what if he [the son] should suffer the interdiction of water and fire? What if the grandson, from whom the great-grandson would be appointed, as we have shown, had been emancipated? For these cases, and all those from which a self-successor (suus heres) would be born after the death, of course, of the grandfather, do not belong to the Lex Velleia: but according to the intent of the Lex Velleia, all these must also be admitted, so that other cases are to be admitted in likeness of death.
§28.2.29.6Quid si qui filium apud hostes habebat testaretur? quare non induxere, ut, si antea quam filius ab hostibus rediret quamuis post mortem patris decederet, tunc deinde nepos uel etiam adhuc illis uiuis post mortem scilicet aui nasceretur, non rumperet? nam hic casus ad legem Uelleam non pertinet.
What if someone who had a son among the enemy made a will? Why did they not introduce that, if the son died before returning from the enemy, even if after the father's death, and then a grandson was born, or even while they were still alive, of course after the grandfather's death, it would not break the will? For this case does not belong to the Lex Velleia.
melius ergo est, ut in eiusmodi utilitate praesertim post legem Uelleam, quae et multos casus rumpendi abstulit, interpretatio admittatur, ut instituens nepotem, qui sibi post mortem suus nasceretur, recte instituisse uideatur, quibuscumque casibus nepos post mortem natus suus esset rumperetque praeteritus: atque etiam si generaliter, 'quidquid sibi liberorum natum erit post mortem' aut 'quicumque natus fuerit' sit institutus, si suus nasceretur.
Therefore, it is better that, for the sake of such utility, especially after the Lex Velleia (which removed many cases of breaking), an interpretation be admitted so that one who appoints a grandson who would be born to him as a self-successor after his death is deemed to have rightly appointed him, in whatever cases the grandson born after death would be a self-successor and would break the will if passed over; and even if he were appointed generally as 'whatever children shall be born to him after death' or 'whoever shall be born,' if he should be born a self-successor.
§28.2.29.7Si eius, qui filium habeat et nepotem ex eo instituat, nurus praegnas ab hostibus capta sit ibique uiuo pariat, mox ille post mortem patris atque aui redeat, utrum hic casus ad legem Uelleam respiciat an ad ius antiquum aptandus sit, possitque uel ex iure antiquo uel ex Uellea institutus non rumpere? quod quaerendum est, si iam mortuo filio pronepotem instituat redeatque mortuo.
If, of one who has a son and appoints a grandson from him, the pregnant daughter-in-law has been captured by the enemy and gives birth there during his lifetime, and soon he [the child] returns after the death of the father and the grandfather, does this case look to the Lex Velleia or is it to be adapted to the ancient law, and can he, being appointed, prevent the breaking of the will either from the ancient law or from the Velleia? This must be asked if, the son being already dead, he appoints a great-grandson, and he returns after he [the grandfather] is dead.
sed cum testamentum ab eo non rumpitur, nihil refert, utrum ex iure antiquo an ex lege Uellea excludatur.
But since the will is not broken by him, it does not matter whether he is excluded under the ancient law or under the Lex Velleia.
§28.2.29.8Forsitan addubitet quis, an istis casibus si nepos post testamentum nascatur uiuo patre suo, deinde ex eo concipiatur, isque uiuo patre deinde auo nascatur, an non potuerit heres institui, quia pater ipsius non recte institutus esset.
Perhaps someone might doubt whether, in those cases, if a grandson is born after the will during his father's lifetime, and then [a child] is conceived from him, and he is born during the lifetime of his father and then of his grandfather, he could not be appointed heir, because his own father [the grandson] had not been rightly appointed.
quod minime est expauescendum: hic enim suus heres nascitur et post mortem nascitur.
This is by no means to be feared: for he is born a self-successor, and he is born after death.
§28.2.29.9Ergo et si pronepos admittetur, qui natus erit ex nepote postea uiuo filio, atque si ex eo natus esset, adoptatur.
Therefore, a great-grandson will also be admitted, who shall be born from a grandson afterwards, while the son is alive, and as if he were born of him, he is adopted.