[PAULUS libro nono quaestionum. ] §28.6.43.prEx facto quaeritur: qui filium habebat mutum puberem, impetrauit a principe, ut muto substituere ei liceret, et substituit Titium: mutus duxit uxorem post mortem patris et nascitur ei filius: quaero, an rumpatur testamentum.
[PAULUS, from his ninth book of Questions.] It is asked from the facts: a person who had a mute son of age obtained a petition from the emperor that he might be allowed to substitute for the mute, and he substituted Titius. After the death of the father, the mute took a wife and a son was born to him. I ask whether the testament is ruptured.
respondi: beneficia quidem principalia ipsi principes solent interpretari: uerum uoluntatem principis inspicientibus potest dici eatenus id eum tribuere uoluisse, quatenus filius eius in eadem ualetudine perseuerasset, ut, quemadmodum iure ciuili pubertate finitur pupillare testamentum, ita princeps imitatus sit ius in eo, qui propter infirmitatem non potest testari.
I replied: the emperors themselves are indeed accustomed to interpret imperial benefits; but to those looking at the will of the emperor, it can be said that he wished to grant this only to the extent that his son should have persisted in the same state of health, so that, just as a pupillary testament is ended by puberty in civil law, so the emperor imitated the law in the case of one who, on account of infirmity, cannot make a testament.
nam et si furioso filio substituisset, diceremus desinere ualere testamentum, cum resipuisset, quia iam posset sibi testamentum facere: etenim iniquum incipit fieri beneficium principis, si adhuc id ualere dicamus: auferret enim testamenti factionem homini sanae mentis.
For even if he had substituted for an insane son, we would say that the testament ceases to be valid when he regained his sanity, because he could now make a testament for himself; for indeed the benefit of the emperor begins to be unjust if we say that it still is valid, for it would take away the power of making a testament from a person of sound mind.
igitur etiam adgnatione sui heredis dicendum est rumpi substitutionem, quia nihil interest, alium heredem institueret ipse filius postea an iure habere coepit suum heredem: nec enim aut patrem aut principem de hoc casu cogitasse uerisimile est, ut eum, qui postea nasceretur, exheredaret.
Therefore, it must be said that the substitution is ruptured also by the birth of a self-heir, because it makes no difference whether the son himself afterwards instituted another heir or began to have his own heir by law; for it is not probable that either the father or the emperor thought of this case, so as to disinherit him who should be born afterwards.
nec interest, quemadmodum beneficium principale intercedat circa testamenti factionem, utrum in personam unius an complurium.
Nor does it matter how the imperial benefit intervenes concerning the power of making a testament, whether toward the person of one or of several.
§28.6.43.1Item quaero, si ita facta proponatur substitutio: 'filius meus si intra decem annos decesserit, Titius heres esto, si intra quattuordecim, Maeuius' filiusque octo annorum decesserit, utrum Titius solus ex substitutione ei heres erit an et Maeuius, quia certum est et intra decem et intra quattuordecim annos filium decessisse.
Likewise I ask, if the substitution is proposed to be made thus: "If my son should die within ten years, let Titius be heir; if within fourteen, Maevius," and the son of eight years should die, whether Titius alone will be heir to him from the substitution, or Maevius also, because it is certain that the son died both within ten and within fourteen years.
respondi omne quidem spatium, quod est intra pubertatem, liberum esse patri ad substituendum filio, sed finis huius pubertas est: magis autem est in utroque eorum tempus suum separatim seruari, nisi contraria uoluntas testatoris aperte ostendatur.
I replied that indeed the entire space which is within puberty is free to the father for substituting for the son, but the end of this is puberty; however, it is more acceptable that for both of them their own time is observed separately, unless the contrary will of the testator is openly shown.
§28.6.43.2Lucius Titius cum haberet filios in potestate, uxorem heredem scripsit et ei substituit filios: quaesitum est, an institutio uxoris nullius momenti sit eo, quod ab eo gradu filii non essent exheredati.
Lucius Titius, when he had sons in his power, wrote his wife as heir and substituted his sons to her. It was asked whether the institution of the wife is of no moment by this, that the sons were not disinherited from that degree.
respondi cum gradum, a quo filii praeteriti sint, nullius esse momenti et ideo, cum idem substituti proponantur, ex testamento eos heredes exstitisse uideri, scilicet quia non totum testamentum infirmant filii, sed tantum eum gradum, qui ab initio non ualuit, sicut responsum est, si a primo sit filius praeteritus, a secundo exheredatus: nihil autem interest, qua ratione secundi heredis institutio ualeat, utrum quia ab eo filius exheredatus est an quia ipse filius substitutus est.
I replied that since the degree from which the sons were passed over is of no moment, and therefore, when the same are proposed as substitutes, they seem to have stood as heirs from the testament, namely because the sons do not invalidate the whole testament, but only that degree which was not valid from the beginning, just as it was replied if a son is passed over by the first and disinherited by the second; but it makes no difference by what reason the institution of the second heir is valid, whether because the son was disinherited from it or because the son himself was substituted.
§28.6.43.3Iulius Longinus pater eos, quos sibi heredes instituerat, filio ita substituit 'quisquis sibi heres esset': unus ex heredibus institutis, qui tacitam fidem accommodauerat, ut non capienti partem ex eo quod acceperat daret, ad substitutionem impuberis admissus utrum pro ea parte, pro qua scriptus fuit, ueniat, an uero pro ea quam cepit, ita ut augeatur eius pars in substitutione? respondi: qui in fraudem legum fidem accommodat, adeundo heres efficitur nec desinet heres esse, licet res quae relictae sunt auferuntur.
Julius Longinus, a father, substituted those whom he had instituted as heirs to himself, to his son in this way: "whoever should be heir to him." One of the instituted heirs, who had accommodated a silent trust to give to a non-recipient a part from what he had received, being admitted to the substitution of the impuber, whether he comes for that part for which he was written, or indeed for that which he took, so that his part in the substitution is increased? I replied: he who accommodates trust in fraud of the laws is made heir by entering, nor does he cease to be heir, although the things which were left are taken away.
unde et ex secundis tabulis in tantum heres esse potest, in quantum scriptus esset: satis enim punitus est in eo, in quo fecit contra leges.
Whence also from the second tablets he can be heir to such an extent as he was written; for he has been sufficiently punished in that in which he did against the laws.
quin immo etsi desineret heres esse, idem dicerem: quemadmodum intellegendum est in eo qui, cum scriptus esset heres, postquam adisset hereditatem in seruitutem redactus est et postea libertate donatus.
Nay, indeed, even if he ceased to be heir, I would say the same: as is to be understood in the case of one who, when he had been written heir, after he had entered the inheritance, was reduced into slavery and afterwards presented with freedom.
cui permissum est ad substitutionem uenire, quae ei in testamento fuerat relicta: licet enim hereditatem ex institutione amisit, tamen ex substitutione istam portionem, quantum amisit, percepturum.
To whom it was permitted to come to the substitution which had been left to him in the testament; for although he lost the inheritance from the institution, yet from the substitution he would receive that portion as much as he lost.