[TERTULLIANUS libro singulari de castrensi peculio. ] §29.1.33.prSi filius familias miles fecisset testamentum more militiae, deinde post mortem patris postumus ei nasceretur, utique rumpitur eius testamentum.
[TERTULLIANUS, in his single book on Military Peculium.] If a filiusfamilias who is a soldier had made a testament in the military manner, and subsequently, after the death of his father, a postumus were born to him, his testament is in any case revoked.
uerum si perseuerasset in ea uoluntate, ut uellet adhuc illud testamentum ualere, ualiturum illud, quasi rursum aliud factum, si modo militaret adhuc eo tempore quo nasceretur illi postumus.
However, if he had persisted in that intention, wishing that testament still to be valid, it will be valid, just as if another testament had been made anew, provided only that he were still serving as a soldier at the time when the postumus was born to him.
§29.1.33.1Sed si filius familias miles fecisset testamentum, deinde postea uiuo eo et adhuc auo quoque superstite nasceretur ei postumus, non rumpitur eius testamentum, quia cum id quod nasceretur in potestate eius non perueniret, non uidetur suus heres adgnasci: ac ne auo quidem suo hunc nepotem postumum, cum uiuo filio nasceretur, suum heredem protinus adgnasci et ideo nec aui testamentum rumpi, quoniam, licet in potestate aui protinus esse inciperet, tamen antecederet eum filius.
But if a filiusfamilias who is a soldier had made a testament, and subsequently, while he was alive and his grandfather was also still surviving, a postumus were born to him, his testament is not revoked, because since the child being born would not come under his power, a suus heres is not deemed to be newly added. Indeed, not even to his grandfather is this posthumous grandson, when born during the lifetime of the son, immediately added as a suus heres, and therefore the grandfather's testament is not revoked either, because, although the grandson would immediately begin to be in the power of the grandfather, yet the son stands before him.
§29.1.33.2Secundum quae si filius familias miles testamentum fecerit et omiserit postumum per errorem, non quod uolebat exheredatum, deinde postumus post mortem aui uiuo adhuc filio, id est patre suo natus fuerit, omnimodo rumpet illius testamentum.
According to these rules, if a filiusfamilias who is a soldier should make a testament and omit a postumus by error, not because he wished him to be disinherited, and then the postumus should be born after the death of the grandfather while the son, that is, his own father, is still alive, he will in any case revoke the latter's testament.
sed si quidem pagano iam illo facto natus sit, nec conualescet ruptum: si uero militante adhuc natus fuerit, rumpetur, deinde, si uoluerit ratum illud esse pater, conualescet sic quasi denuo factum.
But if the child should be born after he has already become a civilian, the revoked testament will not recover its validity; if, however, the child should be born while he is still serving as a soldier, the testament will be revoked, but then, if the father should wish it to be ratified, it will recover its validity just as if it had been made anew.
§29.1.33.3Sed et si uiuo auo nascatur postumus, hic non rumpet continuo patris testamentum: si superuixerit post mortem aui uiuo adhuc patre, rumpet, quod nouus illi nunc primum heres adgnascitur: ita tamen, ut numquam possit duorum simul testamenta rumpere et aui et patris.
But even if the postumus is born while the grandfather is alive, he does not immediately revoke his father's testament; if he survives after the death of the grandfather while his father is still alive, he will revoke it, because a new heir is now for the first time added to him. This is on the condition, however, that he can never revoke the testaments of both at the same time, namely, that of the grandfather and that of the father.