[TRYPHONINUS libro uicesimo primo disputationum. ] §34.5.9.prQui duos impuberes filios habebat, ei qui supremus moritur Titium substituit: duo impuberes simul in naue perierunt: quaesitum est, an substituto et cuius hereditas deferatur.
[TRYPHONINUS, in the twenty-first book of Disputations.] A man who had two impuberal sons substituted Titius for the one who dies last; the two impuberal sons perished together in a shipwreck. The question arose whether [the inheritance] is deferred to the substitute, and whose inheritance [it is].
dixi, si ordine uita decessissent, priori mortuo frater ab intestato heres erit, posteriori substitutus: in ea tamen hereditate etiam ante defuncti filii habebit hereditatem.
I said that if they had died in order, the brother would be the heir ab intestato for the one who died first, and the substitute would be the heir for the one who died later; yet in that inheritance [of the later deceased] he would also have the inheritance of the son who died before.
in proposita autem quaestione ubi simul perierunt, quia, cum neutri frater superstes fuit, quasi utrique ultimi decessisse sibi uideantur? an uero neutri, quia comparatio posterioris decedentis ex facto prioris mortui sumitur? sed superior sententia magis admittenda est, ut utrique heres sit: nam et qui unicum filium habet, si supremum morienti substituit, non uidetur inutiliter substituisse: et proximus adgnatus intellegitur etiam qui solus est quique neminem antecedit: et hic utrique, quia neutri eorum alter superstes fuit, ultimi primique obierunt.
But in the proposed question where they perished together, since a brother was surviving to neither, should they seem to themselves to have died last, as if both [were the last]? Or indeed neither, because the comparison of the one dying later is taken from the fact of the one who died first? But the former opinion is rather to be admitted, so that he is the heir to both; for even one who has an only son, if he substitutes for him when he dies last, is not deemed to have made an invalid substitution; and the nearest agnate is understood to be even one who is alone and who precedes no one; and here both, because neither of them survived the other, died both last and first.
§34.5.9.1Cum bello pater cum filio perisset materque filii quasi postea mortui bona uindicaret, adgnati uero patris, quasi filius ante perisset, diuus Hadrianus credidit patrem prius mortuum.
When in war a father had perished with his son, and the mother of the son claimed the property as if the son had died afterwards, while the agnates of the father claimed it as if the son had perished before, the Divine Hadrian believed that the father had died first.
§34.5.9.2Si cum filio suo libertus simul perierit intestati, patrono legitima defertur hereditas, si non probatur superuixisse patri fillius: hoc enim reuerentia patronatus suggerente dicimus.
If a freedman has perished together with his son intestate, the statutory inheritance is deferred to the patron, unless it is proved that the son survived the father; for we say this because the reverence due to the patron suggests it.
§34.5.9.3Si maritus et uxor simul perierint, stipulatio de dote ex capitulo 'si in matrimonio mulier decessisset habebit locum, si non probatur illa superstes uiro fuisse.
If a husband and wife have perished together, the stipulation concerning the dowry under the clause 'if the woman had died in marriage' will have effect, unless it is proved that she survived her husband.
§34.5.9.4Si Lucius Titius cum filio pubere, quem solum testamento scriptum heredem habebat, perierit, intellegitur superuixisse filius patri et ex testamento heres fuisse, et filii hereditas successoribus eius defertur, nisi contrarium approbetur.
If Lucius Titius has perished together with his puberal son, whom alone he had appointed as heir in his will, the son is understood to have survived his father and to have been the heir under the will, and the inheritance of the son is deferred to his successors, unless the contrary is proved.
quod si impubes cum patre filius perierit, creditur pater superuixisse, nisi et hic contrarium approbetur.
But if an impuberal son has perished together with his father, the father is believed to have survived, unless here too the contrary is proved.