[ULPIANUS libro quadragensimo primo ad edictum. ] §37.10.3.7Si is, qui status controuersiam filio faciebat et solum se filium dicebat, decesserit et mater ei heres extiterit, si quidem eandem controuersiam impuberi mater faciat, qui se ex alia natum adfirmat, quam filius eius faciebat, scilicet ut neget eum filium, idcircoque ad se totam hereditatem ex persona filii sui defuncti pertinere debere: in tempus pubertatis differri Iulianus ait, quia nihil interest, suo an hereditario nomine controuersian faciat.
If he who was bringing a controversy of status against a son and saying that he alone was the son should die and his mother should become his heir, if indeed the mother brings the same controversy against the youth below puberty—who asserts that he was born from another mother—which her son was bringing, namely so as to deny that he is the son, and therefore that the entire inheritance ought to belong to her from the person of her deceased son: Julian says that it must be deferred until the time of puberty, because it makes no difference whether she brings the controversy in her own name or in an hereditary name.
plane si mater concedat hunc quoque defuncti filium esse idcircoque partem dimidiam hereditatis solam sibi uindicet ex bonis paternis, non erit iudicium in tempus pubertatis differendum: non enim de paternis, sed de fraternis bonis impuberi, fit controuersia.
Clearly, if the mother concedes that this boy also is a son of the deceased and therefore claims only a half part of the inheritance for herself from the paternal goods, the trial will not have to be deferred until the time of puberty; for the controversy is brought against the youth below puberty not concerning the paternal, but concerning the fraternal goods.
§37.10.3.8Ibidem Iulianus quaerit: si duo impuberes patiantur status controuersiam et alter eorum pubuerit, exspectari alterius quoque pubertas debet, scilicet ut sic de utriusque statu agatur, ne aliquod praeiudicium fiat impuberi per puberis personam.
In the same place Julian inquires: if two persons below puberty suffer a controversy of status and one of them has reached puberty, the puberty of the other also ought to be awaited, namely so that in this way the status of both may be tried, lest any prejudgment be made against the one below puberty through the person of the one who has reached puberty.
§37.10.3.9Parui refert, utrum petitor sit impubes an possessor, qui status controuersiam patitur: nam siue possideat siue petat, in tempus pubertatis differtur.
It is of little importance whether the one who suffers the controversy of status is the petitioner or the possessor; for whether he possesses or petitions, it is deferred until the time of puberty.
§37.10.3.10Si duo impuberes inuicem faciant status controuersiam, interest, utrum quisque se solum filium dicat an et se.
If two persons below puberty bring a controversy of status against each other, it matters whether each says that he alone is the son, or also himself.
nam si se solum dicat filium, dicendum est debere controuersiam ad utriusque pubertatem differri, siue petitor siue possessor sit.
For if he says that he alone is the son, it must be said that the controversy ought to be deferred until the puberty of both, whether he is the petitioner or the possessor.
si uero alter se solum, alter et se dicat, si quidem ille adoleuerit qui se solum dicat, adhuc differtur controuersia propter pueritiam eius qui et se dicit, sed de parte, non de toto: de parte enim utique nec litigatur.
But if one says that he alone is the son, and the other says that he also is, if indeed the one who says he alone is has grown up, the controversy is still deferred on account of the childhood of the one who says that he also is, but concerning a part, not concerning the whole; for concerning a part indeed there is no litigation.
quod si ille adoleuerit qui et se dicit, ille impubes sit qui se solum dicit, non differtur controuersia: nec enim patitur impubes status controuersiam, sed facit, cum hic pubes et se dicat, illum non neget filium.
But if the one who says that he also is has grown up, and the one who says he alone is is below puberty, the controversy is not deferred; for the one below puberty does not suffer a controversy of status, but brings it, since this person who has reached puberty says that he also is the son and does not deny that the other is the son.
§37.10.3.11Si quis liber et heres esse iussus status controuersiam impuberi faciat, qui filius esse et testamentum patris rupisse dicitur, Iulianus ait utraque iudicia et hereditatis et libertatis in tempus pubertatis differenda: neutrum enim eorum ita explicari potest, ut non condicioni eius, qui se filium esse contendat, praeiudicetur.
If anyone who was ordered to be free and heir should bring a controversy of status against a youth below puberty, who is said to be the son and to have broken the testament of his father, Julian says that both trials, of the inheritance and of liberty, must be deferred until the time of puberty; for neither of them can be so unfolded that a prejudgment is not made against the status of him who contends that he is the son.
ceterae quoque libertatis quaestiones ex testamento pendentes in tempus pubertatis differuntur.
Other questions of liberty also, which are pending from a testament, are deferred until the time of puberty.
§37.10.3.12Cum extaret impubes, qui se filium defuncti diceret, debitoresque negent eum filium esse defuncti et intestati hereditatem ad adgnatum, qui forte trans mare aberit, pertinere: necessarium erit puero Carbonianum edictum.
Since there is a youth below puberty who says he is the son of the deceased, and the debtors deny that he is the son of the deceased and assert that the inheritance of the intestate belongs to an agnate who happens to be absent across the sea, the Carbonian edict will be necessary for the boy.
sed et absenti erit prospiciendum, ut cautio praestetur.
But care must also be taken for the absentee, so that security may be provided.
§37.10.3.13Missum autem ex Carboniano in possessionem student praetores possessorem constituere.
Moreover, the praetors are eager to establish the person who has been admitted into possession from the Carbonian edict as the possessor.
quod si coeperit aut hereditatem petere quasi bonorum possessor Carbonianus aut singulas res, rectissime Iulianus libro uicensimo quarto digestorum scribit exceptione eum summouendum: contentus enim esse debet hac praerogatiua, quod possessorem eum praetor tantisper constituit.
But if he should begin either to petition for the inheritance as a Carbonian possessor of goods or for individual things, Julian writes most correctly in the twenty-fourth book of his Digests that he must be barred by an exception; for he ought to be content with this privilege, that the praetor has established him as possessor for the time being.
si igitur uult hereditatem aut singulas res petere, petat, inquit, directa actione quasi heres, ut ea petitione iudicari possit, an quasi ex liberis heres sit, ne praesumptio Carbonianae bonorum possessionis iniuriam aduersariis afferat: quae sententia habet rationem et aequitatem.
Therefore, if he wishes to petition for the inheritance or for individual things, let him petition, he says, by a direct action as if he were the heir, so that by that petition it may be judged whether he is the heir as if from the children, lest the presumption of the Carbonian possession of goods bring an injury to his adversaries; which opinion has reason and equity.
§37.10.3.14Haec autem possessio intra annum datur, sicuti ordinariae quoque, quae liberis dantur, intra annum dantur.
Moreover, this possession is given within a year, just as the ordinary possessions also, which are given to children, are given within a year.
§37.10.3.15Sed oportebit hunc, qui se filium dicit, non solum Carbonianam bonorum possessionem accipere, uerum etiam ordinariam agnoscere.
But it will be necessary for this person who says he is the son not only to receive the Carbonian possession of goods, but also to acknowledge the ordinary possession.
§37.10.3.16Currunt autem tempora ad utramque bonorum possessionem separatim, ordinariae quidem, ex quo patrem suum decessisse scit et facultatem bonorum possessionis petendae habuit, Carbonianae uero ex eo tempore, ex quo controuersiam sibi fieri cognouit.
Moreover, the times run for each possession of goods separately: for the ordinary indeed, from the time he knows his father has died and had the power of petitioning for the possession of goods; for the Carbonian, however, from that time when he knew that a controversy was being made against him.