[ULPIANUS libro trigesimo nono ad edictum. ] §37.4.3.prNon tantum autem ipsi emancipati admittuntur ad bonorum possessionem, uerum etiam hi quoque, qui ex his nati sunt.
[ULPIANUS libro trigesimo nono ad edictum.] Moreover, not only are the emancipated persons themselves admitted to the possession of goods, but also those who are born of them.
§37.4.3.1Si duos habens nepotes alterum emancipatum loco filii adoptauerit, uidendum, an solus ille quasi filius admittatur: quod ita scilicet procedit, si quasi patrem eius nepotis, quem retinuerat, sic adoptauerit: melius est autem dicere posse eum solum ad bonorum possessionem peruenire.
If a person having two grandsons adopts one of them who had been emancipated in the place of a son, it must be considered whether he alone is admitted as if he were a son; which indeed proceeds if he adopted him, so to speak, as the father of that grandson whom he had retained; but it is better to say that he alone can attain to the possession of goods.
§37.4.3.2Sed si sit hic nepos emancipatus, uerum est dicere non admitti eum quasi filium: hic enim quasi filius non est ex liberis, cum iura adoptionis emancipatione finita sint.
But if this grandson is emancipated, it is true to say that he is not admitted as if he were a son; for this pseudo-son is not among the children, since the rights of adoption were ended by emancipation.
§37.4.3.3Si filium habens et ex eo nepotem in locum filii nepotem adoptauero, ambo admittentur: plane si fuerit emancipatus nepos, non admittetur, quia pater eum praecedit.
If, having a son and a grandson by him, I adopt the grandson in the place of a son, both will be admitted. Clearly, if the grandson has been emancipated, he will not be admitted, because his father precedes him.
§37.4.3.4Si quis post emancipationem quaesitum sibi filium patri suo in adoptionem dederit in locum filii, aequissimum est ei praestari quod cuiuis adrogato filio, idcircoque patri suo iungendus est.
If anyone, after his own emancipation, gives a son begotten by him in adoption to his own father in the place of a son, it is most equitable that there should be granted to him what is granted to any arrogated son, and therefore he must be joined with his father.
sed si emancipatus hic nepos post adoptionem proponatur, aequissimum erit eum abstinere (recipit enim locum suum) nec debet patri suo iungi.
But if this grandson is supposed to be emancipated after the adoption, it will be most equitable for him to abstain (for he recovers his own place) and he ought not to be joined with his father.
§37.4.3.5Si emancipatus filius uxore non ex uoluntate patris ducta filium fuerit sortitus, dein nepos patre iam mortuo ad bonorum possessionem aui uelit uenire, admittendus est ad eam: non enim per rescissionem is, qui filius iustus est, efficietur non filius, cum rescissio, quo magis admittantur, non quo minus, adhibeatur.
If an emancipated son, having married a wife against his father's will, has obtained a son, and then, the father being already dead, the grandson wishes to come to the bonorum possessio of the grandfather, he must be admitted to it; for a person who is a lawful son will not be made not a son by rescission, since rescission is applied to favor admission, not exclusion.
nam etsi tam ignominiosam duxerit uxorem filius, ut dedecori sit tam ipsi quam patri mulierem talem habere, dicemus et ex ea natum ad bonorum possessionem aui admitti, cum possit auus iure suo uti eumque exheredare: nec enim minus in hoc nepote is, qui de inofficioso cogniturus est, quam merita nepotis patris eius delicta perpendet.
For even if the son married so shameful a wife that it is a disgrace both to himself and to his father to have such a woman, we shall say that the one born of her is also admitted to the bonorum possessio of the grandfather, since the grandfather can use his own right and disinherit him; for he who is to judge concerning an undutiful will will weigh, in the case of this grandson, the offenses of his father no less than the merits of the grandson himself.
§37.4.3.6Si emancipatus filius praeteritus ante petitam bonorum possessionem adrogandum se dederit, amittit contra tabulas bonorum possessionem.
If an emancipated son who was passed over in a will gives himself to be arrogated before petitioning for the possession of goods, he loses the possession of goods contrary to the will.
§37.4.3.7Si quis filio suo emancipato nepotem, quem ex eo retinuerat, dederit in adoptionem, nepos iste ad contra tabulas bonorum possessionem aui sui admittitur patre eius ante defuncto, quia in eius est familia, qui et ipse admitti potuit ad bonorum possessionem contra tabulas.
If anyone gives in adoption to his own emancipated son a grandson whom he had retained from him, that grandson is admitted to the possession of goods contrary to the will of his grandfather if his father died before him, because he is in the family of one who himself could have been admitted to the possession of goods contrary to the will.
§37.4.3.8Idemque est et si emancipatus filium, quem post emancipationem quaesierat, patri suo in adoptionem dederit et decesserit: nam et hic nepos iste ad bonorum possessionem patris sui admitti debet, quasi non sit in alia familia.
And the same holds true also if an emancipated son gives a son, whom he had begotten after his emancipation, in adoption to his own father, and dies: for here too that grandson ought to be admitted to the possession of goods of his father, as if he were not in another family.
§37.4.3.9Si pater alicuius peruenerit in adoptiuam familiam, filius non, an patris sui in adoptiua familia mortui bonorum possessionem accipere possit? et arbitror humaniorem esse hanc sententiam, ut filius hic, quamuis non sit in eadem familia, in qua pater, ad bonorum possessionem tamen eius admittatur.
If someone's father has entered an adoptive family, but his son has not, can he receive the possession of goods of his father who died in the adoptive family? And I think that this opinion is more humane: that this son, although he is not in the same family in which his father was, should nevertheless be admitted to his possession of goods.
§37.4.3.10Liberi, qui institui heredes iure non possunt, nec contra tabulas bonorum possessionem petere possunt.
Children who cannot legally be instituted as heirs cannot petition for the possession of goods contrary to the will either.
haec autem uerba 'institui non possunt' ad mortis tempus referuntur.
Moreover, these words "cannot be instituted" refer to the time of death.
§37.4.3.11Si quis ex liberis heres scriptus sit, ad contra tabulas bonorum possessionem uocari non debet: cum enim possit secundum tabulas habere possessionem, quo bonum est ei contra tabulas dari? plane si alius committat edictum, et ipse ad contra tabulas bonorum possessionem admittetur.
If any of the children is appointed heir, he ought not to be called to the possession of goods contrary to the will; for since he can have possession according to the will, for what good is it to be given to him contrary to the will? Clearly, if another person brings the edict into play, he himself will also be admitted to the possession of goods contrary to the will.
§37.4.3.12Sed si sub condicione scriptus sit, bonorum possessionem contra tabulas accipere non potest, et ita Iulianus quoque libro uicesimo tertio digestorum scripsit.
But if he is appointed under a condition, he cannot receive the possession of goods contrary to the will, and so Julian also wrote in the twenty-third book of his Digests.
quid ergo, si defecerit condicio? uerum est eum contra tabulas accipere bonorum possessionem.
What then if the condition fails? It is true that he receives the possession of goods contrary to the will.
§37.4.3.13Si sub ea condicione filius emancipatus heres sit institutus, quae in ipsius potestate non est, quia scriptus heres est, bonorum possessionem secundum tabulas accipere potest et debet, nec contra tabulas potest: et si forte defecerit condicio, tuendus erit a praetore in tantum, quantum ferret, si contra tabulas bonorum possessionem accepisset.
If an emancipated son is instituted heir under a condition which is not in his own power, because he is an appointed heir, he can and ought to receive the possession of goods according to the will, and cannot receive it contrary to the will; and if by chance the condition fails, he must be protected by the praetor to the extent of what he would have received if he had received the possession of goods contrary to the will.
§37.4.3.14Sed et si nepos sub huiusmodi condicione scriptus sit heres, idem erit dicendum.
And also if a grandson is appointed heir under a condition of this kind, the same must be said.
§37.4.3.15Si quis ex liberis non sit scriptus heres, sed seruus eius scriptus sit eumque iusserit adire hereditatem, denegari ei debet bonorum possessio contra tabulas.
If any of the children is not appointed heir, but his slave is appointed and he orders him to enter upon the inheritance, the possession of goods contrary to the will must be denied to him.
§37.4.3.16Idemque est et si legatum relictum sibi uel seruo suo elegerit: nam et hic dicimus bonorum possessionem contra tabulas debere denegari.
And the same holds true also if he has chosen a legacy left to himself or to his slave; for here too we say that the possession of goods contrary to the will must be denied.