[ULPIANUS libro quadragensimo primo ad edictum. ] §37.10.1.prSi cui controuersia fiet, an inter liberos sit, et impubes sit, causa cognita perinde possessio datur ac si nulla de ea re controuersia esset et iudicium in tempus pubertatis causa cognita differtur. §37.10.1.1Eum qui controuersiam facit, si pro pupillo satis ei non detur, simul in possessionem eorum bonorum esse praetor iubet. §37.10.1.2Non tantum masculi, sed et feminae ex uirili sexu descendentes Carboniani commodum habebunt. §37.10.1.3Et generaliter dicimus his demum Carbonianum competere, quibus contra tabulas bonorum possessio competit, his uero non competere, qui repelluntur a contra tabulas bonorum possessione. §37.10.1.4Si quis non ab aliquo hanc controuersiam patiatur, quod inter liberos non sit, sed ab ipso patre, ut puta nepos, qui se retentum in potestate aui dicit, ab emancipato patre, cui iungi desiderat, an differri debeat? et magis est, ut differatur: parui enim refert, quis ei controuersiam faciat, cum et si testator eum negauerit ex liberis, non tamen exheredem scripserit, Carboniano possit esse locus. §37.10.1.5Sed et si quis non tantum ex liberis negetur esse, uerum seruus etiam esse dicatur forte ex ancilla editus, Iulianus scripsit adhuc Carboniano locum esse: quod et diuus Pius rescripsit: nam uel magis consulendum est his quibus maius periculum intenditur.
[ULPIANUS libro quadragensimo primo ad edictum.]\n\nIf a dispute arises against anyone as to whether he is among the children, and he is below the age of puberty, then, after an inquiry into the case, possession of the estate is granted just as if there were no dispute concerning that matter, and the trial is deferred until the time of puberty after an inquiry into the case.\n\nThe praetor orders that the person who brings the dispute, if security is not given to him on behalf of the pupil, shall simultaneously be in possession of those goods.\n\nNot only males, but also females descending from the male line, shall have the benefit of the Carbonian edict.\n\nAnd generally we say that the Carbonian edict is available only to those to whom possession of the estate contrary to the will is available, but is not available to those who are excluded from possession of the estate contrary to the will.\n\nIf someone suffers this dispute not from just anyone—that he is not among the children—but from his father himself, as for example a grandson who says he was retained in the power of his grandfather, by his emancipated father whom he wishes to join, should it be deferred? And it is more proper that it be deferred: for it matters little who brings the dispute against him, since even if the testator denied that he was among the children, but did not however disinherit him, there can be room for the Carbonian edict.\n\nBut also if someone is not only denied to be among the children, but is also said to be a slave, perhaps born of a female slave, Julian wrote that there is still room for the Carbonian edict: which also the divine Pius replied by rescript: for those against whom a greater danger is directed should be consulted all the more.
nam si aliter obseruetur, inuenta erit ratio, quemadmodum audacissimus quisque maiore iniuria inpuberem adficiat, quod et plura et grauiora de eo mentiatur. §37.10.1.6Sed et si ipse defunctus seruus esse dicatur, idem erit dicendum. §37.10.1.7Sed et si fiscus facit impuberi controuersiam, Carbonianum edictum potest locum habere. §37.10.1.8Pomponius libro septuagensimo nono ad edictum scripsit, cum filius heres uel exheres scriptus est, Carbonianum edictum cessare, quamuis filius esse negetur, quia uel quasi scriptus habet bonorum possessionem, etiamsi filius non est, uel repellitur quasi exheredatus, etsi filius esse uideatur: nisi forte postumus, inquit, est heres institutus et natus negetur esse filius, sed subicctus esse dicetur, quo casu eius partis tantum danda est ei bonorum possessio, ex qua institutus est. §37.10.1.9Idem ait, cum quidam exheredem scripsisset filium, quod diceret cum ex adulterio conceptum, quia fieret ei haec controuersia, an inter liberos sit, ex hac parte edicti ei bonorum possessionem competere, cum, si sine elogio exheres scriptus esset, non haberet bonorum possessionem.
For if it were observed otherwise, a way would be found for any most audacious person to inflict a greater injury upon a person below the age of puberty by lying more and worse about him.\n\nBut even if the deceased himself is said to be a slave, the same must be said.\n\nAnd also if the treasury brings a dispute against the person below the age of puberty, the Carbonian edict can take place.\n\nPomponius wrote in his seventy-ninth book on the Edict that when a son is appointed heir or disinherited, the Carbonian edict ceases, although he is denied to be a son, because either he has possession of the estate as if appointed, even if he is not a son, or he is excluded as if disinherited, even if he appears to be a son: unless by chance, he says, a posthumous child is appointed heir and is denied to be the born son, but is said to be a supposititious child, in which case possession of the estate is to be given to him only of that part from which he was appointed.\n\nThe same author says that when someone had disinherited a son because he said he was conceived from adultery, since this dispute would arise for him as to whether he is among the children, possession of the estate is available to him under this part of the edict, whereas if he had been disinherited without any clause of reason, he would not have possession of the estate.
idemque et si ita sit scriptum: 'quisquis est, qui filium meum se esse dicit, exheres esto', quia non est filius exheredatus. §37.10.1.10Si quis filium suum heredem instituerit ex minima parte sic 'ille qui ex illa natus est heres esto', non quasi filium suum, deinde hic contendat patrem intestatum decessisse seque ei suum heredem esse, interest, coheredes eius utrum negent eum filium an uero contendunt testamentum ualere.
And the same applies if it is written thus: 'whoever he is who says he is my son, let him be disinherited', because the son is not disinherited by name.\n\nIf someone has appointed his son heir to a very small share in this way: 'let him who was born of that woman be heir', not as his own son, and then this person contends that his father died intestate and that he is his own heir, it makes a difference whether his co-heirs deny that he is a son or indeed contend that the will is valid.
si testamentum ualere contendunt, controuersia non est differenda et Carbonianum cessat: quod si filium eum negant et ad ipsos potius quasi ad consanguineos hereditatem pertinere dicunt, data bonorum possessione impuberi controuersia in tempus pubertatis differtur. §37.10.1.11Si mater subiecti partus arguatur, an differenda sit quaestio propter statum pueri, quaeritur.
If they contend that the will is valid, the dispute is not to be deferred and the Carbonian edict ceases: but if they deny that he is a son and say that the inheritance belongs to them instead as consanguinei, then after possession of the estate has been granted to the person below the age of puberty, the dispute is deferred until the time of puberty.\n\nIf a mother is accused of having substituted a child, it is asked whether the inquiry should be deferred on account of the status of the child.
et si quidem pupilli status in dubium deuocatur, differri quaestio in tempus pubertatis debet, cum metus potest esse, ne minus idonee defendatur: cum uero mater rea postulatur utique integra fide, et maiore constantia causam defensura recenti tempore, dubium non est cognitionem fieri oportere, et post euentum cognitionis, si suppositum apparuerit, actiones hereditariae puero denegandae sunt omniaque perinde habenda, atque si heres scriptus non fuisset.
And if indeed the status of the pupil is called into question, the inquiry must be deferred until the time of puberty, since there can be a fear lest he be less suitably defended: but when the mother is prosecuted as the accused, surely with unimpaired good faith and with greater constancy to defend the case in recent time, there is no doubt that the inquiry ought to be made, and after the outcome of the inquiry, if it appears that he was a supposititious child, actions regarding the inheritance must be denied to the child and all things must be held just as if he had not been appointed heir.