[IULIANUS libro uicensimo tertio digestorum. ] §37.6.3.prPraetor non sub condicione collationis bonorum possessionem contra tabulas promittit, sed demonstrat, quid data bonorum possessione fieri oportet.
[JULIANUS, from the twenty-third book of the Digests.] The praetor does not promise the possession of goods contrary to the will under the condition of contribution, but points out what ought to be done once the possession of goods has been granted.
alioquin magna captio erit emancipati, si non aliter bonorum possessionem accipere intellegeretur, nisi cauisset de collatione: nam si interim ipse decessisset, heredi suo nihil relinqueret.
Otherwise, there will be a great disadvantage to the emancipated person if it were understood that he does not receive the possession of goods in any other way than if he had given security for the contribution; for if he himself should die in the meantime, he would leave nothing to his heir.
item si frater eius decessisset, non admitteretur ad bonorum possessionem.
Likewise, if his brother had died, he would not be admitted to the possession of goods.
quid ergo est? intellegendum est bonorum possessionem accipere et antequam caueat, sed si non cauerit, ita obseruabitur, ut tota hereditas apud cum, qui in potestate fuerit, remaneat.
What is the case then? It must be understood that he receives the possession of goods even before he gives security, but if he does not give security, it will be observed in such a way that the entire inheritance remains with the one who was in power.
§37.6.3.1Emancipatus filius controuersiam facit impuberi, qui se filium et in potestate patris fuisse dicit: quaero, si bona sua ei emancipatus conferre debeat.
An emancipated son raises a dispute against an impuber who says that he is a son and was under the power of the father; I ask whether the emancipated son ought to contribute his goods to him.
PAULUS notat: puto conferendum esse exacta cautione, ut uictus sicut hereditatem, ita et quae collata sunt praestet.
PAULUS notes: I think that the contribution should be made after exacting security, so that if he is defeated in the lawsuit, he may return what has been contributed just as he would the inheritance.
§37.6.3.2IULIANUS Quotiens contra tabulas bonorum possessio datur, emancipati bona sua conferre debent his solis, qui in potestate patris fuerint.
JULIAN: Whenever the possession of goods is granted contrary to the will, the emancipated persons must contribute their goods only to those who were under the power of the father.
hoc quemadmodum expediri oporteat, quaeri solet: nam si bona a patre relicta et emancipatorum in medium conferantur et ita uiriles partes sumantur, eueniet, ut et emancipatis quoque collatio ab ipsis facta prosit.
How this ought to be settled is commonly asked; for if the goods left by the father and those of the emancipated persons are brought into the common fund and thus equal shares are taken, it will happen that the contribution made by the emancipated persons themselves will also benefit them.
uideamus ergo, ne commodissimum sit emancipatos quartam partem ex bonis paternis ferre, ex suis tertiam: quod dico, exemplo manifestius fiet.
Let us see, therefore, whether it might be most convenient for the emancipated persons to take a fourth share from the father's goods, and a third from their own; what I am saying will become clearer by an example.
ponamus patrem quadringenta reliquisse et duos in potestate filios, duos emancipatos, ex quibus alterum centum, alterum sexaginta in bonis habere: is qui centum habebit centum triginta tria et trientem feret, is uero qui sexaginta contulerit centum uiginti, atque ita eueniet, ut collationis emolumentum ad solos, qui in potestate remanserint, perueniat.
Let us suppose that the father left four hundred, and there are two sons in power and two emancipated sons, of whom one has one hundred in his goods, and the other sixty: the one who has one hundred will take one hundred and thirty-three and a third, whereas the one who has contributed sixty will take one hundred and twenty; and thus it will happen that the benefit of the contribution reaches only those who remained in power.
§37.6.3.3Emancipati bona sua conferre cum his, qui in potestate fuerunt, iubentur.
Emancipated persons are ordered to contribute their goods together with those who were in power.
§37.6.3.4Quare sicut is, qui in potestate est, dotem uxoris praecipit, ita emancipatus quoque, quasi praecipiat, retinere debet.
Therefore, just as the one who is in power takes beforehand his wife's dowry, so also the emancipated person ought to retain it, as if he were taking it beforehand.
§37.6.3.5Emancipatus praeteritus si, dum deliberat, cauerit de bonorum collatione nec bonorum possessionem petierit, agente fratre ex stipulatu ipso iure tutus erit.
If an omitted emancipated son, while he is deliberating, has given security for the contribution of goods but has not petitioned for the possession of goods, he will be protected by operation of law if his brother brings an action based on the stipulation.
sed et si pecuniam contulerit, condictione eam repetit: omissa enim bonorum possessione incipit pecunia sine causa esse apud heredem.
But even if he has contributed money, he recovers it by a condictio; for once the possession of goods has been declined, the money begins to be held by the heir without cause.
§37.6.3.6Qui duos filios in potestate habebat et ex uno corum nepotem, emancipauit filium, ex quo nepotem habebat: deinde emancipatus factus procreauit filium, quem auus in locum filii adoptauit et uel intestatus, uel testamento facto praeterito emancipato filio, decessit: quaesitum est, quid de bonorum possessione, quid de collatione iuris esset.
A person who had two sons in power and a grandson from one of them, emancipated the son from whom he had the grandson; thereafter, having been emancipated, he procreated a son, whom the grandfather adopted in the place of a son, and he died, either intestate or having made a will in which the emancipated son was omitted. It was asked what the law was regarding the possession of goods and the contribution.
respondi, bonorum, de quibus quaeritur, tres partes fieri debent, ex quibus una pertinet ad filium qui in potestate remansit, altera ad nepotem, qui in locum filii adoptatus est, tertia ad emancipatum filium et nepotem, qui in potestate remanserit, ita ut pater soli ei conferat, cum quo bonorum possessionem accipiat.
I answered: of the goods in question, three parts ought to be made, of which one belongs to the son who remained in power, another to the grandson who was adopted in the place of a son, and the third to the emancipated son and the grandson who remained in power, so that the father contributes only to him with whom he receives the possession of goods.