[ULPIANUS libro quadragesimo ad edictum. ] §37.4.8.prNon putauit praetor exheredatione notatos et remotos ad contra tabulas bonorum possessionem admittendos, sicuti nec iure ciuili testamenta parentium turbant: sane si uelint inofficiosi querellam instituere, est in ipsorum arbitrio. §37.4.8.1Aliqua parte tabularum exheredem scribi non sufficit, sed eo gradu, contra quem petitur bonorum possessio.
[ULPIAN in the fortieth book on the Edict.] The praetor did not think that those who are marked and excluded by disinheritance should be admitted to the possession of goods against the will, just as they do not disturb the testaments of their parents under civil law; indeed, if they wish to bring a complaint of an inofficious testament, that is within their own discretion. It is not sufficient to be written as disinherited in any part of the will, but it must be in that grade against which the possession of goods is sought.
unde si a primo gradu exheredatus sit filius, a secundo praeteritus et primo gradu scripti non petierint bonorum possessionem, poterit contra tabulas accipere bonorum possessionem. §37.4.8.2Non quaeuis exheredatio summouet filium a contra tabulas bonorum possessione, sed quae rite facta est. §37.4.8.3Si ab uno ex heredibus sit filius exheredatus, Marcellus libro nono digestorum scribit filium non uideri exheredatum: idcirco contra tabulas bonorum possessionem peti posse contra utrumque heredem. §37.4.8.4Si exheredatus sit filius et institutus, optinente eo gradu, in quo institutus est, puto commisso edicto ab alio filio contra tabulas eum bonorum possessionem petere posse. §37.4.8.5A primo gradu praeteritus est filius, a secundo exheredatus.
Hence, if a son has been disinherited in the first grade, pretermitted in the second grade, and those written in the first grade have not sought the possession of goods, he will be able to receive the possession of goods against the will. Not just any disinheritance excludes a son from the possession of goods against the will, but only that which has been properly done. If a son is disinherited by only one of the heirs, Marcellus writes in the ninth book of the Digests that the son does not seem to be disinherited; therefore, the possession of goods against the will can be sought against both heirs. If a son has been disinherited and also instituted as heir, and the grade in which he was instituted holds good, I think that if the edict is triggered by another son, he can seek the possession of goods against the will. A son was pretermitted in the first grade and disinherited in the second grade.
si in prime gradu scripti non sint in rebus humanis mortis tempore testatoris, dicendum est contra tabulas bonorum possessionem praeteritum petere non posse: hereditas enim in secundo gradu uersatur, non in primo, ex quo neque adiri hereditas neque bonorum possessio peti potest.
If those written in the first grade are not among human things at the time of the testator's death, it must be said that the pretermitted son cannot seek the possession of goods against the will; for the inheritance turns on the second grade, not the first, from which neither the inheritance can be entered upon nor the possession of goods can be sought.
sed si post mortem testatoris decesserint heredes scripti, idem Marcellus putat contra tabulas bonorum possessionem semel natam competere.
But if the written heirs die after the death of the testator, the same Marcellus thinks that the possession of goods against the will, once arisen, is available.
sed et si defecerit condicio institutionis, adhuc tantundem dicit praeteritum ab eo gradu filium contra tabulas bonorum possessionem petiturum.
Moreover, even if the condition of the institution fails, he says that the son pretermitted from that grade will still seek the possession of goods against the will.
idem scribit et si postumus, qui institutus fuit, non fuerit natus: nam adhuc contra tabulas bonorum possessionem competere filio Marcellus ait. §37.4.8.6Si quis sua manu se exheredem scripsit, an contra tabulas bonorum possessionem possit accipere, uideamus.
He writes the same even if a posthumous child, who had been instituted, was not born; for Marcellus says that the possession of goods against the will is still available to the son. If someone has written himself as disinherited with his own hand, let us see whether he can receive the possession of goods against the will.
et Marcellus libro nono digestorum nocere ei hanc exheredationem ait, quia senatus hoc pro non scripto non facit, quod contra eum est. §37.4.8.7Si quis emancipatum filium exheredauerit eumque postea adrogauerit, Papinianus libro duodecimo quaestionum ait iura naturalia in eo praeualere: idcirco exheredationem nocere. §37.4.8.8Sed in extraneo Marcelli sententiam probat, ut exheredatio ei adrogato postea non noceat. §37.4.8.9Postliminio autem reuerso filio dicendum est exheredationem ante factam nocere. §37.4.8.10Si filium in adoptiua familia constitutum pater naturalis exheredauerit, deinde sit filius emancipatus, nocebit ei exheredatio. §37.4.8.11In adoptionem datos filios non summoueri praetor uoluit, modo heredes instituti sint, et hoc iustissime eum fecisse Labeo ait: nec enim in totum extranei sunt.
And Marcellus in the ninth book of the Digests says that this disinheritance is prejudicial to him, because the senate does not treat as unwritten what is against himself. If someone has disinherited an emancipated son and afterwards arrogated him, Papinian in the twelfth book of Questions says that natural rights prevail in his case; therefore, the disinheritance is prejudicial. But in the case of a stranger, he approves Marcellus's opinion, so that the disinheritance does not prejudice him when he is afterwards arrogated. However, in the case of a son who has returned by postliminium, it must be said that the disinheritance previously made is prejudicial. If a natural father has disinherited a son who is placed in an adoptive family, and the son is subsequently emancipated, the disinheritance will prejudice him. The praetor did not wish sons given in adoption to be excluded, provided they have been instituted as heirs, and Labeo says that the praetor did this most justly; for they are not entirely strangers.
ergo si fuerunt heredes scripti, accipient contra tabulas bonorum possessionem, sed ipsi soli non committent edictum, nisi fuerit alius praeteritus ex liberis qui solent committere edictum.
Therefore, if they were written as heirs, they will receive the possession of goods against the will, but they themselves alone will not trigger the edict, unless there is another pretermitted child from among those who are accustomed to trigger the edict.
sed si ipse scriptus non sit, sed alius, qui ei adquirere hereditatem potest, non est in ea causa, ut eum ad bonorum possessionem contra tabulas admittamus. §37.4.8.12Ut autem admittantur ad bonorum possessionem, ex liberis esse eos oportet.
But if he himself is not written, but another is, who can acquire the inheritance for him, he is not in such a position that we should admit him to the possession of goods against the will. But for them to be admitted to the possession of goods, they must be among the children.
ceterum si adoptiuum filium dedi in adoptionem et heredem scripsi, commisso per alios edicto bonorum possessio contra tabulas ei non dabitur. §37.4.8.13Datur autem ei, qui in adoptiua familia est, contra tabulas possessio, si eo gradu heres scriptus sit, contra quem peti potest bonorum possessio. §37.4.8.14Non est nouum, ut emancipatus praeteritus plus iuris scriptis heredibus fratribus suis tribuat, quam habituri essent, si soli fuissent: quippe si filius qui in potestate patris est ex duodecima parte heres scribatur emancipato praeterito, dimidiam partem beneficio emancipati occupat, qui, si emancipatum fratrem non haberet, duodecimam partem habiturus esset.
However, if I have given an adoptive son in adoption and written him as heir, the possession of goods against the will will not be given to him, even if the edict is triggered by others. But the possession of goods against the will is given to one who is in an adoptive family, if he is written as heir in that grade against which the possession of goods can be sought. It is not new for a pretermitted emancipated son to grant more rights to his brothers who are written as heirs than they would have had if they had been alone; indeed, if a son who is in the power of his father is written as heir for a twelfth part, while an emancipated son is pretermitted, he occupies a half part by the benefit of the emancipated son, whereas, if he did not have an emancipated brother, he would have had a twelfth part.
sed si ex parte minima sit heres institutus, non pro ea parte, qua institutus est, tuendus est commisso edicto, sed amplius per bonorum possessionem habere potest.
But even if he is instituted as heir for a very small part, he is not to be protected only for that part for which he was instituted when the edict is triggered, but he can have more through the possession of goods.
praetori enim propositum est, cum contra tabulas bonorum possessionem dat, eas partes unicuique liberorum tribuere, quas intestato patre mortuo in hereditate habiturus esset, si in potestate mansisset: et ideo siue emancipatus siue is qui in potestatem mansit siue in adoptionem datus ex minima parte heres scriptus sit, non redigitur ad eam portionem, ex qua institutus est, sed uirilem accipit.
For the praetor's purpose, when he gives the possession of goods against the will, is to attribute to each of the children those parts which they would have had in the inheritance if the father had died intestate, had they remained in his power; and therefore, whether the emancipated son, or the one who remained in power, or the one given in adoption is written as heir for a very small part, he is not reduced to that portion for which he was instituted, but receives a virile share.