[IDEM libro decimo ad Sabinum. ] §28.3.6.prSi quis filio exheredato nuru praegnate relicta decesserit et extraneum sub condicione instituerit et pendente condicione post mortem patris uel deliberante herede instituto de adeunda hereditate exheredatus filius decesserit et nepos fuerit natus, an rumpat testamentum? et dicemus testamentum non rumpi, cum nec exheredari huiusmodi nepos deberet ab auo, quem pater praecedebat.
[THE SAME from the tenth book on Sabinus.] If someone dies having disinherited his son and left his daughter-in-law pregnant, and has instituted a stranger as heir under a condition, and while the condition is pending, either after the death of the father or while the instituted heir is deliberating about entering upon the inheritance, the disinherited son dies and a grandson is born, does he rupture the testament? And we shall say that the testament is not ruptured, since a grandson of this kind did not need to be disinherited by his grandfather, whom his father preceded.
plane si forte institutus omiserit hereditatem, hunc auo suum futurum heredem ab intestato non dubitatur.
Clearly, if by chance the instituted heir should decline the inheritance, there is no doubt that this grandson will become a self-successor to his grandfather on intestacy.
utrumque propriis rationibus: nam adgnascendo quidem is rumpit quem nemo praecedebat mortis tempore: ab intestato uero is succedit cui ante eum alii non est delata hereditas, non fuisse autem filio delatam hereditatem apparet, cum deliberante instituto decesserit.
Both positions rest on their own reasons: for, indeed, he ruptures by agnation whom no one preceded at the time of death; whereas on intestacy, he succeeds to whom the inheritance was not offered to another before him, and it is clear that the inheritance had not been offered to the son, since he died while the instituted heir was deliberating.
sed haec ita, si mortis aui tempore in utero nepos fuit.
But this is so only if the grandson was in the womb at the time of the grandfather's death.
ceterum si postea conceptus est, Marcellus scribit neque ut suum neque ut nepotem aut cognatum ad hereditatem uel ad bonorum possessionem posse admitti.
Moreover, if he was conceived afterwards, Marcellus writes that he cannot be admitted to the inheritance or to the possession of goods either as a self-successor, or as a grandson, or as a cognate.
§28.3.6.1Sed si pater eius, qui mortis aui tempore in utero fuit, apud hostes erat, nepos iste patre in eadem causa decedente post mortem aui succedendo testamentum rumpet, quia supra scripta persona ei non obstat: nec enim creditur in rebus humanis fuisse, cum in ea causa decedat, quamquam captiuus reuersus patris sui iniustum faceret testamentum in eo praeteritus.
But if the father of the one who was in the womb at the time of the grandfather's death was in enemy hands, this grandson, if his father dies in the same condition after the death of the grandfather, will rupture the testament by succeeding, because the person written above does not stand in his way; for he is not believed to have been among human affairs when he dies in that condition, although if the captive had returned, he would have made his father's testament unjust by having been passed over in it.
§28.3.6.2Siue autem in ciuitate nepos fuit conceptus siue apud hostes, quoniam datur et partui postliminium, succedendo testamentum rumpit.
Moreover, whether the grandson was conceived in the state or among the enemy, since postliminium is granted also to a child at birth, he ruptures the testament by succeeding.
§28.3.6.3Succedendo itaque sui non rumpunt, siue fuerint instituti uel exheredati ab eo gradu ad quem hereditas defertur, scilicet si gradus ille ualeat.
Therefore, self-successors do not rupture by succeeding, whether they have been instituted or disinherited in that degree to which the inheritance is offered, provided, of course, that that degree is valid.
§28.3.6.4Quocumque autem modo parentes praecedentes in potestate esse desierint, succedentes liberi, si fuerint instituti uel exheredati, non rumpent testamentum, siue per captiuitatem siue per mortem uel poenam.
But in whatever manner the preceding parents have ceased to be in power, the succeeding children, if they have been instituted or disinherited, will not rupture the testament, whether by captivity, or by death, or by punishment.
§28.3.6.5Irritum fit testamentum, quotiens ipsi testatori aliquid contigit, puta si ciuitatem amittat per subitam seruitutem, ab hostibus uerbi gratia captus, uel si maior annis uiginti uenum se dari passus sit ad actum gerendum pretiumue participandum.
A testament becomes inoperative whenever something happens to the testator himself, for example, if he loses citizenship through sudden slavery, as when captured by enemies, or if a person over twenty years of age allows himself to be sold for the purpose of carrying out a transaction or sharing the price.
§28.3.6.6Sed et si quis fuerit capite damnatus uel ad bestias uel ad gladium uel alia poena quae uitam adimit, testamentum eius irritum fiet, et non tunc cum consumptus est, sed cum sententiam passus est: nam poenae seruus efficitur: nisi forte miles fuit ex militari delicto damnatus, nam huic permitti solet testari, ut diuus Hadrianus rescripsit, et credo iure militari testabitur.
But also if anyone has been condemned to death, either to the beasts or to the sword, or by any other punishment that takes away life, his testament will become inoperative, and not when he has been executed, but when he has suffered sentence; for he is made a slave of punishment, unless by chance he was a soldier condemned for a military offense, for he is customarily permitted to make a testament, as the divine Hadrian wrote in a rescript, and I believe he will make his testament under military law.
qua ratione igitur damnato ei testari permittitur, numquid et, si quod ante habuit factum testamentum, si ei permissum sit testari, ualeat? an uero poena irritum factum reficiendum est? et si militari iure ei testandum sit, dubitari non oportet, quin, si uoluit id ualere, fecisse id credatur.
By what reasoning, then, is he permitted to make a testament when condemned? If he is permitted to make a testament, does any testament he had previously made also remain valid? Or indeed must that which was made inoperative by the punishment be remade? And if he is to make his testament under military law, there should be no doubt that if he wished it to be valid, he is believed to have made it so.