[IULIANUS libro uicesimo tertio digestorum. ] §37.4.13.prCum emancipatus bonorum possessionem contra tabulas accipit, scriptus heres ei hereditatem petenti cogendus est et praedia et seruos hereditarios praestare: omne enim ius transferri aequum est, quod per causam hereditariam scriptus heres nanciscitur, ad eum, quem praetor heredis loco constituit.
[JULIANUS in the twenty-third book of the Digests.] When an emancipated son receives the possession of goods contrary to the will, the instituted heir must be compelled to hand over both the estates and the slaves belonging to the inheritance to him when he claims the inheritance; for it is equitable that every right which the instituted heir obtains by cause of inheritance be transferred to him whom the praetor has established in the place of an heir.
§37.4.13.1Qui duos filios et ex altero eorum nepotem habebat, eum in adoptionem dedit et heredem instituit praeterito altero filio: quaeritur, quid in his seruari debeat, utrum in partem patris sui admittatur an uirilem portionem habeat.
A man who had two sons and a grandson by one of them, gave him [the grandson] in adoption and instituted him as heir, passing over the other son: it is asked what rule should be observed in these circumstances: whether he should be admitted to his father's share, or should have a portion equal to a single person's share.
respondi: in adoptionem datus nepos et heres scriptus, quamdiu pater eius aut in potestate aut emancipatus est, non potest contra tabulas bonorum possessionem accipere: sed et si pater eius, antequam bonorum possessionem acciperet, decesserit, non admittitur nepos ad bonorum possessionem.
I replied: a grandson who has been given in adoption and instituted as heir, as long as his father is either under power or emancipated, cannot receive the possession of goods contrary to the will; but even if his father should die before he [the father] receives the possession of goods, the grandson is not admitted to the possession of goods.
§37.4.13.2Si pater emancipato filio praeterito heredes duos scripserit, filium quem in potestate habebat et alterum quem in adoptionem dederat, ex quo duos nepotes in familia reliquerat, qui et ipsi testamento praeteriti sint: bonorum possessionem pro parte tertia emancipatus, pro parte tertia is qui in potestate remansit, pro parte tertia qui in adoptionem datus est et filii eius simul habebunt, ita ut sextans patri, sextans nepotibus cedat.
If a father, passing over an emancipated son, has instituted two heirs, namely the son whom he had under his power and another whom he had given in adoption, from whom he [the father] had left two grandsons in his family, who themselves were also passed over in the will: the emancipated son will have the possession of goods for a third part, the one who remained under power for a third part, and the one who was given in adoption together with his sons for a third part, so that a sixth part goes to the father and a sixth part to the grandsons.
§37.4.13.3Si pater ex duobus filiis alterum habentem filios emancipauerit et unum ex nepotibus, quem ante emancipauerat, in locum filii adoptauerit, praeterito deinde emancipato decesserit, aequius erit nepoti, qui in locum filii uenerit, succurri et in tres partes hereditatem diduci, ut unam habeat qui in potestate remanserit, alteram nepos adoptatus in locum filii, tertiam emancipatus cum filio suo, qui nepotis loco fuerit.
If a father, out of his two sons, has emancipated one who had sons, and has adopted into the place of a son one of the grandsons whom he had previously emancipated, and has then died, passing over the emancipated son, it will be more equitable for the grandson who came into the place of a son to be relieved and for the inheritance to be divided into three parts, so that the one who remained under power has one part, the grandson adopted into the place of a son another, and the emancipated son, together with his own son who was in the place of a grandson, the third.
sed etsi mortuo filio alter ex nepotibus in locum filii adoptatus fuerit, tres partes in bonis fient, cum sit aequius eum, qui in locum filii adoptatus est, non minus habere, quam si non ex numero nepotum, sed extraneus adoptatus esset.
But even if, upon the death of the son, one of the grandsons has been adopted into the place of a son, three parts will be made in the goods, since it is more equitable that he who was adopted into the place of a son should have no less than if not one of the number of grandsons, but a stranger, had been adopted.