[PAULUS imperialium sententiarum in cognitionibus prolatarum ex libris VI libro primo seu decretorum libro II.] §36.1.83.prIulius Foebus testamento facto, cum tres liberos heredes institueret, Foebum et Heracliam ex eadem matre, Polycraten ex alia aequis portionibus, petit a Polycrate minore fratre, ut accepto certo praedio hereditatem fratribus concederet: et inuicem eos, qui ex eadem matre erant, si qui eorum heres non fuisset, substituerat.
[PAULUS, from the first book of imperial decisions pronounced in trials, out of six books, or the second book of decrees.] Iulius Foebus, having made a will, when he appointed his three children as heirs in equal shares—Foebus and Heraclia from the same mother, and Polycrates from another—requested of Polycrates, the younger brother, that, upon receiving a certain estate, he should cede his inheritance to his brothers; and, in turn, he had substituted those who were from the same mother for each other, if any of them should not have been heir.
Polycrati, si intra pubertatem decessisset, secundas tabulas fecit, quas matri eius commendauit aperiendas, si inpubes obisset.
For Polycrates, in case he should die before puberty, he made a secondary will, which he entrusted to his mother to be opened if he should die under age.
deinde petit a prioribus, ut, si quis eorum sine liberis decederet, portionem suam exceptis bonis maternis eorum et auitis ei uel eis qui superessent restitueret.
Then he requested of the former that, if any of them should die without children, they should restore their share, excluding their maternal and grandfather's property, to him or them who survived.
Heraclia soror mortua sine liberis fratrem Foebum heredem instituit: Polycrates fideicommissum petierat et optinuerat apud Aurelium Proculum proconsulem Achaiae: appellatione facta, cum solus Foebus egisset μονομερῶς, uictus est, quia 'ei uel eis' uerba utrosque fratres complecterentur.
The sister Heraclia, having died without children, appointed her brother Foebus as her heir. Polycrates had claimed the trust-bequest and had obtained a decision before Aurelius Proculus, the proconsul of Achaia; an appeal having been made, although Foebus alone had litigated unilaterally μονομερῶς, he was defeated, because the words 'to him or to them' embraced both brothers.
adqui inuicem duos illos tantum substituerat: sed et uoluntas haec patris uidebatur, qui exceperat eorum bona materna, quia Polycrates aliam matrem et quidem superstitem habebat, cuius etiam fidei commissum erat, ut legata, quae ei dederat in testamento, moriens Polycrati filio suo restitueret.
And yet he had substituted only those two for each other; but this also seemed to be the intention of the father, who had excepted their maternal property, because Polycrates had a different mother, and indeed one who survived, to whose good faith it had also been entrusted that, upon her death, she should restore the legacies, which he had given her in the will, to her son Polycrates.