[IDEM libro sexto responsorum. ] §29.1.36.prMilitis codicillis ad testamentum factis etiam hereditas iure uidetur dari.
[THE SAME, in his sixth book of Opinions.] When a soldier's codicil is made in addition to a testament, even an inheritance is deemed to be legally granted.
quare si partem dimidiam hereditatis codicillis dederit, testamento scriptus ex asse heres partem dimidiam habebit, legata autem testamento data communiter debentur.
Therefore, if he should give a half part of the inheritance by codicil, the heir designated for the whole in the testament will have a half part, while the legacies given in the testament are due proportionally.
§29.1.36.1Miles castrensium bonorum et non castrensium diuersis heredibus institutis postea castrensium bonorum alios heredes instituit.
A soldier, having designated different heirs for his camp property and non-camp property, subsequently designated other heirs for the camp property.
prioribus tabulis tantum abstulisse uidetur, quantum in posteriores contulerit: nec uidetur mutare, etsi prioribus tabulis unus heres scriptus fuisset.
He is deemed to have taken away from the prior tablets only so much as he conferred upon the subsequent ones; and this is deemed not to change, even if one heir had been written in the prior tablets.
§29.1.36.2Miles in supremis ordinandis ignarus uxorem esse praegnatem uentris non habuit mentionem.
A soldier, in arranging his final affairs, being ignorant that his wife was pregnant, made no mention of the child in the womb.
post mortem patris filia nata ruptum esse testamentum apparuit neque legata deberi.
After the death of the father, a daughter having been born, it appeared that the testament was revoked and that the legacies were not due.
si qua uero medio tempore scriptus heres legata soluisset, utilibus actionibus filiae datis ob improuisum casum esse reuocanda nec institutum, cum bonae fidei possessor fuerit, quod inde seruari non potuisset, praestare.
But if in the meantime the designated heir had paid any legacies, it appeared that, because of the unforeseen event, they must be recovered by granting useful actions to the daughter, and that the designated heir, since he was a possessor in good faith, was not bound to make good what could not be recovered therefrom.
§29.1.36.3Ueteranus moriens testamentum iure communi tempore militiae factum irritum esse uoluit et intestatus esse maluit.
A veteran, when dying, wished a testament made during his time of service under the common law to be void, and preferred to die intestate.
heredum institutiones ac substitutiones in eodem statu mansisse placuit, legata uero petentes exceptione doli mali secundum ius commune summoueri, cuius exceptionis uires ex persona petentis aestimantur: et alioquin potior est in re pari causa possessoris.
It was held that the designations and substitutions of heirs remained in the same state, but that those claiming legacies should be barred under the common law by the plea of fraud, the force of which plea is evaluated according to the person of the claimant; and otherwise, in an equal case, the condition of the possessor is the stronger.
§29.1.36.4Miles iure communi testatus postea testamento iure militiae super bonis omnibus facto post annum militiae uita decesserat: prioris testamenti, quod ruptum esse constabat, non redintegrari uires constitit.
A soldier, having made a testament under the common law, and subsequently having made a testament under military law concerning all his property, died one year after his service had ended; it was held that the force of the prior testament, which was established to have been revoked, was not restored.