[ULPIANUS libro quinto ad Sabinum. ] §28.5.9.prQuotiens uolens alium heredem scribere alium scripserit in corpore hominis errans, ueluti 'frater meus' 'patronus meus', placet neque eum heredem esse qui scriptus est, quoniam uoluntate deficitur, neque eum quem uoluit, quoniam scriptus non est.
[ULPIANUS libro quinto ad Sabinum.] Whenever someone, wishing to write one person as heir, has written another, erring in the identity of the person, such as "my brother" or "my patron," it is held that neither the one who was written is heir, since intention is lacking, nor the one whom he wished, since he was not written.
§28.5.9.1Et si in re quis errauerit, ut puta dum uult lancem relinquere, uestem leget, neutrum debebit hoc, siue ipse scripsit siue scribendum dictauerit.
And if someone has erred in respect of a thing, as for instance, while wishing to leave a dish, he bequeaths a garment, neither of these will be owed, whether he wrote it himself or dictated it to be written.
§28.5.9.2Sed si non in corpore errauit, sed in parte, puta si, cum dictasset ex semisse aliquem scribi, ex quadrante sit scriptus, Celsus libro duodecimo quaestionum, digestorum undecimo posse defendi ait ex semisse heredem fore, quasi plus nuncupatum sit, minus scriptum: quae sententia rescriptis adiuuatur generalibus.
But if he has not erred in the identity of the person, but in the share, for instance if, having dictated that someone be written for a half share, he was written for a quarter share, Celsus says in the twelfth book of his Questions, and the eleventh book of his Digests, that it can be defended that he will be heir for a half share, as if more had been declared and less written; which opinion is supported by general rescripts.
idemque est et si ipse testator minus scribat, cum plus uellet adscribere.
The same is true even if the testator himself writes less when he wished to write more.
§28.5.9.3Sed si maiorem adscripserit testamentarius uel (quod difficilius est probatione) ipse testator, ut pro quadrante semissem, Proculus putat ex quadrante fore heredem, quoniam inest quadrans in semisse: quam sententiam et Celsus probat.
But if the writer of the will or (what is more difficult to prove) the testator himself has written a larger share, such as a half instead of a quarter, Proculus thinks that he will be heir for a quarter, since a quarter is contained in a half; which opinion Celsus also approves.
§28.5.9.4Sed et si quis pro centum ducenta per notam scripsisset, idem iuris est: nam et ibi utrumque scriptum est et quod uoluit et quod adiectum est: quae sententia non est sine ratione.
But also if someone had written two hundred instead of one hundred by a numerical symbol, the same rule of law applies; for there too, both what he wished and what was added are written; which opinion is not without reason.
§28.5.9.5Tantundem Marcellus tractat et in eo, qui condicionem destinans inserere non addidit: nam et hunc pro non instituto putat: sed si condicionem addidit dum nollet, detracta ea heredem futurum nec nuncupatum uideri quod contra uoluntatem scriptum est: quam sententiam et ipse et nos probamus.
Marcellus treats the same issue in the case of one who, intending to insert a condition, did not add it; for he thinks that this person also is to be regarded as not appointed; but if he added a condition when he did not wish to, he will be heir with that condition struck out, and what was written against his intention is not deemed to have been declared; which opinion both he himself and we approve.
§28.5.9.6Idem tractat et si testamentarius contra uoluntatem testatoris condicionem detraxit uel mutauit, heredem non futurum, sed pro non instituto habendum.
He also treats the case where the writer of the will, contrary to the intention of the testator, struck out or changed a condition, that the person will not be heir, but must be held as not appointed.
§28.5.9.7Sed si, cum Primum heredem ex parte dimidia scribere destinasset, Primum et Secundum scripsit, solus Primus scriptus heres uidebitur et solus heres existet quasi ex parte dimidia institutus.
But if, when he had intended to write Primus as heir for a half share, he wrote Primus and Secundus, Primus alone will be deemed the written heir and he alone will exist as heir, as if appointed for a half share.
§28.5.9.8Si quis nomen heredis quidem non dixerit, sed indubitabili signo eum demonstrauerit, quod paene nihil a nomine distat, non tamen eo, quod contumeliae causa solet addi, ualet institutio.
If someone indeed has not spoken the name of the heir, but has indicated him by an unmistakable sign, which is almost no different from a name, provided it is not something that is usually added for the sake of insult, the institution is valid.
H §28.5.9.9eres institui, nisi ut certe demonstretur, nemo potest.
H eir, no one can be appointed, unless he is clearly identified.
§28.5.9.10Si quis ita dixerit: 'uter ex fratribus meis Titio et Maeuiio Seiam uxorem 'duxerit, ex dodrante, uter non duxerit, ex quadrante heres esto', hic recte factam institutionem esse certum est: sed quis ex qua parte, incertum.
If someone has spoken thus: "Whichever of my brothers, Titius and Maevius, marries Seia as wife, let him be heir for nine-twelfths, and whichever does not marry her, for a quarter," it is certain that here the institution was legally made; but who is heir for which share is uncertain.
§28.5.9.11Plane erit similis, si ita institutio facta fuerit: 'uter ex supra scriptis fratribus meis Seiam uxorem duxerit, heres esto': sed et hanc puto ualere institutionem quasi sub condicione factam.
Clearly it will be similar, if the institution was made thus: "Whichever of my above-written brothers marries Seia as wife, let him be heir"; but I think that this institution also is valid, as if made under a condition.
H §28.5.9.12eredes iuris successores sunt et, si plures instituantur, diuidi inter eos a testatore ius oportet: quod si non fiat, omnes aequaliter heredes sunt.
H eirs are successors to the right, and if several are appointed, the right ought to be divided among them by the testator; but if this is not done, all are heirs equally.
§28.5.9.13Si duo sint heredes instituti, unus ex parte tertia fundi Corneliani, alter ex besse eiusdem fundi, Celsus expeditissimam Sabini sententiam sequitur, ut detracta fundi mentione quasi sine partibus heredes scripti hereditate potirentur, si modo uoluntas patris familias manifestissime non refragatur.
If two heirs are appointed, one for a third part of the Cornelian estate, and the other for two-thirds of the same estate, Celsus follows the very practical opinion of Sabinus, that with the mention of the estate struck out, they should obtain the inheritance as heirs written, as it were, without shares, provided that the intention of the father of the family does not most clearly oppose this.
§28.5.9.14Si quis ita scripserit: 'Stichus liber esto et, posteaquam liber erit, heres esto', Labeo, Neratius et Aristo opinantur detracto uerbo medio 'postea' simul ei et libertatem et hereditatem competere: quae sententia mihi quoque uera uidetur.
If someone has written thus: "Let Stichus be free, and after he is free, let him be heir," Labeo, Neratius, and Aristo are of the opinion that with the middle word "after" struck out, both freedom and the inheritance belong to him at the same time; which opinion seems true to me also.
§28.5.9.15Si quis Primum ex triente, Secundum ex triente heredem instituerit et, si Secundus heres non erit, Tertium ex besse heredem scribat, hic Secundo repudiante bessem habebit non solum iure substitutionis, sed et institutionis, id est trientem iure substitutionis, trientem iure institutionis.
If someone has appointed Primus heir for a third, Secundus for a third, and, if Secundus is not heir, writes Tertius heir for two-thirds, here, if Secundus repudiates, Tertius will have two-thirds not only by the right of substitution, but also of institution, that is, one third by the right of substitution, and one third by the right of institution.
Seruus cum libertate heres §28.5.9.16institutus si sit alienatus, iuberi adire ab eo potest, cui alienatus est: sed si redemptus sit a testatore, institutio ualet et necessarius heres erit.
A slave appointed heir with freedom instituted, if he has been alienated, can be ordered to enter upon the inheritance by him to whom he was alienated; but if he was bought back by the testator, the institution is valid, and he will be a necessary heir.
§28.5.9.17Si seruus ex die libertatem acceperit et hereditatem pure, mox sit alienatus uel manumissus, uideamus, an institutio ualeat.
If a slave has received freedom from a certain day and the inheritance unconditionally, and then is alienated or manumitted, let us see whether the institution is valid.
et quidem si alienatus non esset, potest defendi institutionem ualere, ut die ueniente libertatis, quae hereditatem moratur, competente libertate et heres necessarius existat.
Indeed, if he had not been alienated, it can be maintained that the institution is valid, so that when the day of freedom arrives, which delays the inheritance, with freedom acquired, he also exists as a necessary heir.
§28.5.9.18Sed si in diem libertas, hereditas autem sub condicione data sit, si condicio post diem aduenientem exstiterit, liber et heres erit.
But if freedom was given to a certain day, and the inheritance under a condition, if the condition is fulfilled after the arrival of that day, he will be free and heir.
§28.5.9.19Sed et si pure fuerit heres institutus libertate in diem data, si sit alienatus uel manumissus, dici debet heredem eum posse existere.
But also if he was unconditionally appointed heir, with freedom given to a certain day, if he is alienated or manumitted, it must be said that he can exist as heir.
§28.5.9.20Sed et si non ipse seruus sit alienatus, sed usus fructus in eo, aeque institutio ualet, sed differtur in id tempus, quo extinguitur usus fructus.
But also if not the slave himself was alienated, but a usufruct in him, the institution is equally valid, but is deferred to that time when the usufruct is extinguished.