[TERENTIUS CLEMENS libro quarto ad legem Iuliam et Papiam. ] §35.1.62.prSed si hoc specialiter expressit testator, etiamsi ex alio post mortem suam liberos procreauerit, nihilo minus eam ad legatum admitti.
[TERENTIUS CLEMENS in the fourth book on the Lex Iulia et Papia.] But if the testator has specifically expressed this, even if she should procreate children from another man after his death, she is nevertheless admitted to the legacy.
§35.1.62.1Cuidam non solidum capienti amplius lege concessae portionis relictas est, si heredi aliquid dedisset: quaeritur, an id, quod condicionis implendae causa dederat, consequi ex causa legati possit (quasi non capiat id quod eroget) an uero id extra sit nec ideo magis ex bonis testatoris amplius capiat, quam capturus esset, si sine condicione legatum esset.
To a certain person who cannot take the whole under the law, more than the portion permitted by law was left, on the condition that he should give something to the heir. The question is asked whether he can obtain, by virtue of the legacy, that which he had given for the sake of fulfilling the condition (as if he does not take what he pays out), or whether indeed that is outside the calculation, and he does not on that account take more from the property of the testator than he would have taken if the legacy had been without condition.
et Iulianus rectissime scribit tanto amplius eum capturum, quantum condicionis implendae causa dare eum oportet, nec interesse, heredi an extraneo dare iussus sit, quia computatione facta, quae semper in persona eius introduceretur, non amplius lege concessae portionis ad eum subsideret.
And Iulianus writes most correctly that he will take so much more, as much as he is required to give for the sake of fulfilling the condition; and that it does not matter whether he was ordered to give it to the heir or to a stranger, because once the calculation is made, which would always be introduced in his person, no more than the portion permitted by law would remain with him.
§35.1.62.2Cum uir uxori 'si a liberis ne nubserit' in annos singulos aliquid legauit, quid iuris sit? Iulianus respondit posse mulierem nubere et legatum capere.
When a husband has bequeathed something annually to his wife under the condition "if she does not marry on account of the children," what is the law? Iulianus answered that the woman can marry and take the legacy.
quod si ita scriptum esset 'si a liberis impuberibus ne nubserit', legem locum non habere, quia magis cura liberorum quam uiduitas iniungeretur.
But if it had been written "if she does not marry on account of the impubertal children," the law does not apply, because the care of the children rather than widowhood is imposed upon her.