[AFRICANUS libro quarto quaestionum. ] §37.4.14.prSi duobus filiis emancipatis alter heres institutus sit, alter praeteritus, si institutus adierit, quamuis uerbis edicti parum expressum sit, tamen non posse eum petere bonorum possessionem respondit, quia iudicium patris secutus sit: nec enim emancipatum, si legatum acceperit, admitti ad bonorum possessionem, siue ab heredibus institutis siue ab his, qui contra tabulas petierint, acceperit.
[AFRICANUS in the fourth book of Questions.] If, out of two emancipated sons, one has been instituted as heir and the other passed over, and if the instituted one has entered upon the inheritance, although it is not sufficiently expressed in the words of the edict, yet he [Africanus] replied that he cannot claim the possession of goods, because he has followed the decision of his father; for an emancipated son, if he has accepted a legacy, is not admitted to the possession of goods, whether he has accepted it from the instituted heirs or from those who have claimed contrary to the will.
sed illud obseruandum, ut praetor eum, qui heres institutus adierit, in eam partem qua scriptus sit tueri debeat, dum tamen non ampliorem, quam habiturus esset, si bonorum possessionem accepisset: ut hactenus deteriorem causam suam fecerit, quod, si ex minore parte sit institutus, eam dumtaxat retinere possit et quod extraneis quoque legata praestare cogatur.
But this must be observed: that the praetor ought to protect him who, having been instituted as heir, has entered upon the inheritance, in that share for which he was written, provided however that it is no larger than what he would have had if he had received the possession of goods; so that he has made his condition so far worse, in that, if he is instituted for a smaller share, he can retain only that, and that he is compelled to pay legacies even to strangers.
quod si is qui in potestate est heres institutus sit, quoniam necessarius heres fit, non aliud dici posse, quam et ipsum petere posse bonorum possessionem, si modo hereditati se non inmiscuerit: tunc enim, quia iudicium patris comprobasse uidetur, in eodem loco quo emancipatum haberi debere.
But if he who is under power has been instituted as heir, since he becomes a necessary heir, nothing else can be said than that he too can claim the possession of goods, provided only that he has not intermeddled with the inheritance; for in that case, because he is deemed to have approved the decision of his father, he ought to be held in the same position as an emancipated son.
§37.4.14.1Filius in adoptiua familia uxore ducta filium sustulit eumque post mortem patris adoptiui emancipauit: hunc nepotem contra tabulas aui naturalis decreto posse petere bonorum possessionem respondit.
A son, having married a wife in an adoptive family, begot a son, and after the death of the adoptive father, emancipated him; he replied that this grandson can claim the possession of goods contrary to the will of his natural grandfather by a decree.
item si filius emancipatus sublato filio et emancipato adrogandum se dederit et mortuo adoptiuo patre decesserit, et contra patris et contra aui tabulas ex decreto hunc admitti minime dubitari debere, ne alioquin ab omnium bonis excluderetur.
Likewise, if an emancipated son, having begotten a son and emancipated him, has given himself in adrogation, and has died after the death of his adoptive father, it ought by no means to be doubted that this grandson is admitted by a decree both contrary to his father's and contrary to his grandfather's will, lest otherwise he should be excluded from the goods of everyone.