[ULPIANUS libro quadragensimo ad edictum. ] §37.8.1.prSi quis ex his, quibus bonorum possessionem praetor pollicetur, in potestate parentis, cum is moritur, non fuerit, ei liberisque quos in ciusdem familia habuit, si ad eos hereditas suo nomine pertinebit neque notam exheredationis meruerunt, bonorum possessio eius partis datur, quae ad eum tineret, si in potestate permansisset, ita ut ex ea parte dimidiam, reliquam liberi eius hisque dumtaxat bona sua conferat.
[ULPIANUS, On the Edict, Book XL.] If any of those to whom the praetor promises bonorum possessio was not in the potestas of the parent when the latter died, the bonorum possessio of that share which would have belonged to him if he had remained in potestas is given to him and to the children whom he had in the family of the same person, provided that the inheritance belongs to them in their own name and they have not deserved the brand of disinherison; on the condition that he takes a half of that share, and his children the remainder, and only these latter collate their own goods.
§37.8.1.1Hoc edictum acquissimum est, ut neque emancipatus solus ueniat et excludat nepotes in potestate manentes, neque nepotes iure potestatis obiciantur patri suo.
This edict is most equitable, so that neither the emancipated child should come alone and exclude the grandchildren who remain in potestas, nor should the grandchildren, by right of potestas, be set against their own father.
§37.8.1.2Et in adoptionem datus filius et heres institutus ad hoc edictum pertinet, ut ei iungatur, nepos, qui in aui sui naturalis potestate est.
A son given in adoption and appointed heir also comes under this edict, so that a grandchild who is in the potestas of his natural grandfather is joined with him.
iungitur autem nepos patri suo emancipato, siue pater praeteritus sit siue institutus.
Now, a grandchild is joined with his emancipated father, whether the father has been passed over or appointed heir.
et haec crit differentia inter in adoptionem datum et emancipatum, quod in adoptionem quidem dato non alias iungitur nisi instituto et alio committente edictum, emancipato autem, siue sit institutus emancipatus siue sit praeteritus.
And this will be the difference between one given in adoption and one emancipated, that to one given in adoption indeed, a grandchild is not joined unless he is appointed heir and someone else puts the edict into motion, whereas to one emancipated, whether the emancipated father is appointed heir or passed over.
§37.8.1.3Filio in potestate ex besse, emancipato ex triente herede instituto Iulianus ait nepotem praeteritum petita contra tabulas bonorum possessione patruo sextantem, patri unciam ablaturum.
Julian says that if a son in potestas is appointed heir to two-thirds (ex besse), and an emancipated son to one-third (ex triente), a grandchild who has been passed over, on seeking bonorum possessio contrary to the provisions of the will, will take a sixth (sextantem) from his uncle, and an ounce (unciam) from his father.
§37.8.1.4Si pater emancipatus exheredatus sit nepotibus ex eo praeteritis qui erant in potestate retenti, nepotes admittuntur: absurdum enim est, cum patri praeterito iungantur, instituto eo uel exheredato non admitti.
If an emancipated father has been disinherited, and the grandchildren born of him who were retained in potestas have been passed over, the grandchildren are admitted; for it is absurd that, while they are joined with a father who has been passed over, they should not be admitted when he has been appointed heir or disinherited.
§37.8.1.5Sed et si patruus eorum, qui erat in potestate, sit praeteritus, pater exheredatus, debent nepotes admitti: nam exheredatus pater eorum pro mortuo habetur.
But even if their uncle, who was in potestas, has been passed over, and the father has been disinherited, the grandchildren ought to be admitted; for their disinherited father is regarded as dead.
§37.8.1.6Si pater in potestate manens exheredatus uel institutus sit, nepotem ex eo siue in potestate manentem siue emancipatum ad bona aui neque uocari neque uocandum esse Scaeuola ait: totiens enim nepoti consulendum est, quotiens in potestate retentus est patre emancipato.
Scaevola says that if a father remaining in potestas has been disinherited or appointed heir, a grandchild born of him, whether remaining in potestas or emancipated, is neither called nor ought to be called to the grandfather’s estate; for the grandchild's interest is to be protected only so often as he was retained in potestas while his father was emancipated.
liberos igitur in familia esse oportet, ut huic edicto locus sit, eius scilicet familia, cuius bonorum possessio petitur.
Therefore, the children must be in the family, that is, in the family of the person whose bonorum possessio is sought, for this edict to apply.
sed et si postumus natus sit ex emancipato ante emancipationem conceptus, idem erit dicendum.
But even if a posthumous child is born of an emancipated person, having been conceived before the emancipation, the same must be said.
§37.8.1.7Liberos autem non omnes simul uocat praetor, sed gradatim, hoc est eos, qui sui sunt, scilicet nepotes, si sunt, si minus, eos qui sunt inferioris gradus: nec eos miscebimus.
The praetor, however, does not call all the children at the same time, but step by step, that is, those who are self-successors (sui), namely, grandchildren if there are any, and if not, those of a lower degree; nor shall we mix them.
plane si sint ex emancipato nepos et ex nepote eius alio pronepos, dicendum erit utrumque ci iungi: ambo enim in suorum loco successerunt.
Clearly, if there is a grandchild by an emancipated son, and a great-grandchild by another grandchild of his, it must be said that both are joined to him; for both have succeeded to the place of self-successors.
§37.8.1.8Si postliminio nepos redierit, dicendum est eum patri emancipato coniungi.
If a grandchild should return by right of postliminium, it must be said that he is joined with his emancipated father.
§37.8.1.9Si pater ex duobus filiis, quos in potestate habuit, alterum emancipauerit et nepotem ex eo in locum filii adoptauerit et praeterito emancipato decesserit: Iulianus ait nepoti in locum filii adoptato succurri oportere, ut quasi filius portionem habeat, quam haberet et si extraneus adoptatus esset.
If a father, out of two joys whom he had in his potestas, emancipated one and adopted a grandchild by him in the place of a son, and died having passed over the emancipated son: Julian says that the grandchild adopted in the place of a son ought to be assisted, so that he may have, as if he were a son, the share which he would have had even if a stranger had been adopted.
sic fiet, inquit, ut filius, qui in potestate fuit, tertiam partem, nepos in locum filii adoptatus aliam tertiam emancipatus filius cum nepote altero retento in potestate partiatur: nec enim minus debet ferre nepos in locum filii adoptatus, quam si ab extraneo esset adoptatus.
Thus it will happen, he says, that the son who was in potestas will take a third part, the grandchild adopted in the place of a son another third, and the emancipated son will divide the remaining third with the other grandchild who was retained in potestas; for the grandchild adopted in the place of a son ought not to receive less than if he had been adopted from outside the family.
§37.8.1.10Illud non interest, quota portio hereditatis ad nepotem pertineat, an perquam modicam: nam et si modica sit, attamen dicemus locum esse huic parti edicti.
It does not matter how large a portion of the inheritance belongs to the grandchild, or if it is extremely small; for even if it is small, we shall nevertheless say that this part of the edict applies.