[PAPINIANUS libro tertio decimo quaestionum. ] §37.11.11.pr'Qui ex liberis meis impubes supremus morietur, ei Titius heres esto'. duobus peregre defunctis si substitutus ignoret, uter nouissimus decesserit, admittenda est Iuliani sententia, qui propter incertum condicionis etiam prioris posse peti possessionem bonorum respondit.
[PAPINIANUS, in the thirteenth book of Questions.] 'Let Titius be heir to whichever of my children shall die last below the age of puberty.' If two have died abroad, and the substitute does not know which of them died last, the opinion of Julian must be accepted, who replied that, on account of the uncertainty of the condition, possession of the goods even of the former can be claimed.
§37.11.11.1Filius heres institutus post mortem patris ab hostibus rediit: bonorum possessionem accipiet et anni tempus a quo rediit ei computabitur.
A son instituted as heir has returned from the enemy after the death of his father: he shall receive possession of the goods, and the period of a year shall be computed for him from the time he returned.
§37.11.11.2Testamento facto Titius adrogandum se praebuit ac postea sui iuris effectus uita decessit.
Titius, having made a will, offered himself for adrogation, and afterwards, having become sui iuris, departed from life.
scriptus heres si possessionem petat, exceptione doli mali summouebitur, quia dando se in adrogandum testator cum capite fortunas quoque suas in familiam et domum alienam transferat.
If the appointed heir should claim possession, he will be barred by the plea of fraud, because, by giving himself in adrogation, the testator transferred also his fortune, along with his status, into another's family and house.
plane si sui iuris effectus codicillis aut aliis litteris eodem testamento se mori uelle declarauerit, uoluntas, quae defecerat, iudicio recenti redisse intellegetur, non secus ac si quis aliud testamentum fecisset ac supremas tabulas incidisset, ut priores supremas relinqueret.
Clearly, if, after becoming sui iuris, he declared by codicils or other writings that he wished to die with the same will, the intention which had failed will be understood to have returned by a fresh decision, just as if someone had made another will and cut up the latest tablets so as to leave the prior ones as the final ones.
nec putauerit quisquam nuda uoluntate constitui testamentum: non enim de iure testamenti maxime quaeritur, sed uiribus exceptionis.
And let no one think that a will is established by bare intention; for the question is not chiefly about the law of the will, but about the force of the plea.
quae in hoc iudicio quamquam actori opponatur, ex persona tamen eius qui opponit aestimatur.
Although this plea is raised against the plaintiff in this action, it is nevertheless evaluated from the person of him who raises it.