[MARCELLUS libro nono digestorum. ] §37.8.3.prQui duos filios habebat, alterum ex his emancipauit, Enepotem ex eo in potestate retinuit: emancipatus filium sustulit et a patre exheredatus est: quaero, cum frater eius et ipse emancipatus praeteritus sit et nepotes ex emancipato filio ab auo heredes instituti, quid de bonorum possessione iuris sit? et quid intersit, si emancipatum quoque, ex quo nepotes erant nati, praeteritum esse ponamus.
[MARCELLUS in the ninth book of the Digests.] A man who had two sons emancipated one of them and retained in his power a grandson born of him; the emancipated son begot another son and was disinherited by his father. I ask, when his brother and the emancipated son himself have been passed over, and the grandsons born of the emancipated son have been appointed heirs by the grandfather, what is the law regarding the possession of goods? And what difference would it make if we suppose that the emancipated son also, from whom the grandsons were born, was passed over?
respondi, si filium retento ex eo nepote emancipauerit et emancipatus procreauerit filium et heres uterque nepos institutus fuerit, pater eorum exheredatus, alius filius praeteritus: solus filius praeteritus bonorum possessionem contra tabulas petere poterit: exheredatus enim obstat filiis suis post emancipationem susceptis.
I answered: if a man, while retaining in his power the grandson born of his son, has emancipated that son, and the emancipated son has begotten a son, and both grandsons have been appointed heirs, their father being disinherited and the other son passed over, only the son who was passed over will be able to petition for the possession of goods contrary to the will; for a disinherited father stands in the way of his children born after his emancipation.
nepoti tamen retento in potestate bonorum possessio dari debet, quoniam, si pater eius emancipatus praeteritus esset, simul cum eo bonorum possessionem accipere posset propter id caput edicti, quod a Iuliano introductum est, id est ex noua clausula, nec debet deterioris esse condicionis, quia pater eius exheredatus sit.
However, the possession of goods ought to be granted to the grandson who was retained in power, because, if his emancipated father had been passed over, he would have been able to receive the possession of goods together with him by virtue of that head of the edict which was introduced by Julian, that is, under the new clause, and he ought not to be in a worse position because his father was disinherited.
idque ei praeterito quoque praestari oportebit.
And this must also be secured for him if he himself is passed over.
sed fratris eius, qui post emancipationem natus est, diuersa condicio est: conseruanda est tamen et illi ad uirilem partem hereditas, sicut etiam imperator Antoninus in persona nepotis ex filia rescripsit.
But the condition of his brother, who was born after the emancipation, is different; nevertheless, for him too, the inheritance must be preserved up to an equal share, just as the Emperor Antoninus also replied by rescript in the case of a grandson born of a daughter.