[IDEM libro octauo quaestionum. ] §29.1.38.prQuod dicitur, si miles intra annum quam missus est decesserit, ualere eius testamentum quod iure militari fecerat, uerum est, etiamsi post annum condicio institutionis exstiterit, mortuo eo intra annum.
[THE SAME, in his eighth book of Questions.] The saying that if a soldier dies within a year after his discharge, his will which he had made under military law is valid, is true even if the condition of the institution of the heir is fulfilled after the year, provided that he died within the year.
et ideo si heredi filio substituerit, nihil interest, quando filius moriatur: sufficit enim patrem intra annum obisse.
And therefore, if he substituted another for his son as heir, it does not matter when the son dies; for it is sufficient that the father died within the year.
§29.1.38.1Miles testamentum fecerat, deinde non ignominiae causa missus rursum cinctus est in alia militia: quaerebatur, an testamentum eius, quod in militia fecerat, ualeret.
A soldier had made a will, and then, having been discharged not for a disgraceful cause, was girded again in another military service: it was asked whether his will, which he had made during his military service, was valid.
quaesiui, utrum iure militari an communi iure testatus est.
I asked whether he had made his will under military law or under common law.
et si quidem communi iure testatus est, nulla dubitatio est, quin ualeat.
And indeed, if he made his will under common law, there is no doubt that it is valid.
sed si ut miles fecisset testamentum, agitare coepi, quando adsumptus fuisset, postquam desiit in numeris esse, utrum intra annum an post annum: cognoui intra annum eum adsumptum.
But if he had made the will as a soldier, I began to consider when he was re-enlisted after he ceased to be in the ranks, whether within a year or after a year; I found that he had been re-enlisted within the year.
ergo si, cum adhuc iure militari ualeret, rursus eodem iure posset testari, numquid etiam post annum eo mortuo ualeat testamentum? me mouebat, quod alia militia est posterior: sed humanius est dicere ualere testamentum, quasi coniuncto munere militiae.
Therefore, if, while it was still valid under military law, he could have made a will again under the same law, would the will still be valid if he died after the year? I was moved by the fact that the second military service is a different and subsequent one; but it is more humane to say that the will is valid, as if the duties of the military service were combined.
non loquor de eo, qui uoluit ualere testamentum etiam adsumptus: hic enim quasi in militia sequenti fecit testamentum exemplo eius, qui paganus fecit, deinde militare coepit.
I am not speaking of one who wished the will to be valid even after being re-enlisted; for such a person, like one who made a will as a civilian and then began to serve as a soldier, has made his will as it were in the subsequent military service.