[IDEM libro nono decimo disputationum. ] §37.4.20.prFilium quem in potestate habebat exheredauit, emancipatum praeteriit: quaesitum est, quatenus emancipatus bonorum possessionem habiturus sit.
He disinherited the son whom he had in his power, and passed over the emancipated son: it was asked to what extent the emancipated son would have possession of the goods.
dixi, si scripti heredes extranei adierint hereditatem, repellendum esse filium, qui mansit in potestate.
I said that if the designated outside heirs entered upon the inheritance, the son who remained in power must be rejected.
quod si hi repudiauerint hereditatem (quod facile sunt facturi nihil laturi ex hereditate propter eum, qui contra tabulas accepit bonorum possessionem), filius ab intestato patris suus heres deprehendetur: emancipatus autem petens contra tabulas bonorum possessionem solus habebit bonorum possessionem.
But if they repudiated the inheritance (which they will easily do, since they will take nothing from the inheritance because of the one who received the possession of goods contrary to the will), the son will be found to be the self-successor of his father on intestacy; whereas the emancipated son, petitioning for the possession of goods contrary to the will, will have the possession of goods alone.
sed cum exheredatio non adita hereditate ex testamento nullius sit momenti (ideoque non obstare eam nec quo minus contra tabulas libertorum patris accipiat bonorum possessionem, Iulianus recte respondit, ne testamentum per omnia irritum ad notam exheredationis solam profecisse uideatur), redit res ad intestati exitum, ut aduersus filium suum ex asse heredem ab intestato patri emancipatum praetor in parte dimidia tueatur.
But since a disinheritance is of no moment under a will when the inheritance is not entered upon (and for this reason, Julian rightly answered that it does not prevent him from receiving the possession of goods contrary to the will of his father's freedmen, lest the will, though void in all other respects, should seem to have been effective only for the mark of disinheritance), the matter returns to the outcome of intestacy, so that the praetor protects the emancipated son to the extent of a half share against his own son who became heir to the father's entire estate on intestacy.
erit ergo uenale beneficium scripti heredis extranei, ut, cum ipse iure hereditatis nihil sit consecuturus, adeundo repellat filium in potestate relictum praestetque assem emancipato filio iure contra tabulas bonorum possessionis: si autem omiserit hereditatem, in portionem bonorum exheredatum effectu admittet, iure factum solum suum heredem.
Therefore, the favor of the designated outside heir will be for sale, so that, although he himself is to obtain nothing by right of inheritance, by entering upon it he may reject the son left in power and provide the entire estate to the emancipated son by right of the possession of goods contrary to the will; but if he waives the inheritance, he will in effect admit the disinherited son (who by law became the sole heir) to a share of the goods.
sed quemadmodum praetor emancipatum tueatur, si adita non fuerit hereditas, ita nec filius qui in potestate remansit aditione adhibita in totum expellendus erit, sed ad hereditatis petitionem admittendus est ex causa inofficiosi querellae contra emancipatum mouendae. §37.4.20.1Uideamus tamen isto casu, quo utrique ad bona patris ueniunt, an ei conferre debeat emancipatus: nam neque ex hac parte edicti uerbis id facere cogitur, unde contra tabulas accepit bonorum possessionem, quae inter eos, quibus ita bonorum possessio dabitur, caueri de collatione ab emancipato iubet: iste enim qui mansit in potestate quod exheredatus nominatim fuit, non est uocatus ad bonorum possessionem contra tabulas: neque ex illa parte edicti, qua intestato patre mortuo emancipatus ad bonorum possessionem admissus ad collationem compellitur, quia etsi frater ab intestato heres sit, emancipatus tamen non inde accepit bonorum possessionem.
But just as the praetor protects the emancipated son if the inheritance has not been entered upon, so the son who remained in power must not be entirely expelled when an entry has been made, but must be admitted to the petition for the inheritance on the grounds of bringing a complaint of an undutiful will against the emancipated son. Let us see, however, in this case where both come to the father's goods, whether the emancipated son ought to make a collation to him. For he is not compelled to do so by the words of this part of the Edict, under which he received the possession of goods contrary to the will, which orders security to be given for collation by the emancipated son among those to whom the possession of goods is so granted; for that son who remained in power, because he was disinherited by name, was not called to the possession of goods contrary to the will. Nor is he compelled by that part of the Edict where, when a father dies intestate, the emancipated son admitted to the possession of goods is forced to make a collation, because even if the brother is an heir on intestacy, the emancipated son did not receive the possession of goods from that source.
et uereor, ne hactenus filio suo profuerit factum heredis scripti non adeuntis, ut eum ad portionem admitteret bonorum paternorum, non etiam eorum, quae emancipatus propria habuit, et hoc sit consequens illi, quod, cum ex minore parte scriptus a patre heres relictus in potestate, admisso fratre emancipato ad contra tabulas bonorum possessionem, eius beneficio plus consequatur, quamuis edicti uerbis collatio inducatur, ex mente praetoris denegandam eam respondetur.
And I fear lest the act of the designated heir not entering upon the inheritance has benefited his son only so far as to admit him to a share of the father's goods, but not also to those goods which the emancipated son held as his own; and this is consistent with the rule that when a son left in power was designated as heir by his father for a smaller share, and on his emancipated brother being admitted to the possession of goods contrary to the will, he obtains more through his brother's favor, although a collation is induced by the words of the Edict, it is answered that it should be denied according to the intention of the praetor.
multo magis autem huic conferri non oportet, quia ei a patre exheredatus, a praetore ad bonorum possessionem contra tabulas non uocatus occasione omissae hereditatis a scripto herede (nihil habituro propter delatam emancipato a praetore contra tabulas bonorum possessionem) nomen sui heredis adeptus est. §37.4.20.2Legata tamen ex parte sua iste emancipatus liberis et parentibus praestare cogetur non solida, sed deminuta in dimidium, quod relinquitur manenti in potestate.
Much more, however, is it improper for a collation to be made to this man, because he, having been disinherited by his father and not called by the praetor to the possession of goods contrary to the will, obtained the name of a self-successor on the occasion of the waiver of the inheritance by the designated heir (who would have nothing because of the possession of goods contrary to the will granted to the emancipated son by the praetor). Nevertheless, this emancipated son will be compelled to pay legacies from his own share to children and parents, not in full, but reduced by half, which is left to the one remaining in power.
sed nec aduersus eum constituendae actionis legatorum ratio est, qui mero iure intestato heres exstitit. §37.4.20.3Sed qui accepit contra tabulas bonorum possessionem, etiamsi non fuerit adita hereditas a scripto, praestat legata ea parte testamenti data, contra quam bonorum possessio accepta est.
But there is no ground for establishing an action for legacies against him who became heir on intestacy by mere operation of law. But he who received the possession of goods contrary to the will, even if the inheritance has not been entered upon by the designated heir, pays the legacies given in that part of the will contrary to which the possession of goods was received.
erit ergo melior hoc casu condicio in familia relicti filii, quam foret, si exheredatus non esset.
Therefore, in this case, the condition of the son left in the family will be better than it would have been if he had not been disinherited.