[ULPIANUS libro quadragensimo primo ad edictum. ] §37.9.1.prSicuti liberorum eorum, qui iam in rebus humanis sunt, curam praetor habuit, ita etiam eos, qui nondum nati sint, propter spem nascendi non neglexit.
[ULPIAN in the forty-first book on the Edict.] Just as the praetor took care of those children who are already in the world, so too he did not neglect those who are not yet born, on account of the hope of their being born.
nam et hac parte edicti eos tuitus est, dum uentrem mittit in possessionem uice contra tabulas bonorum possessionis.
For also by this part of the edict he protected them, while he sends the womb into possession in place of the possession of goods contrary to the will.
§37.9.1.1Praegnatem esse mulierem oportet omnimodo nec dicere se praegnatem sufficit: quare nec tenet datio bonorum possessionis, nisi uere praegnas fuit et mortis tempore et eo, quo mitti in possessionem petit.
It is absolutely necessary that the woman be pregnant, and it is not sufficient for her to say that she is pregnant; therefore, the grant of possession of goods does not hold unless she was truly pregnant both at the time of death and at the time when she petitions to be sent into possession.
§37.9.1.2Totiens autem mittitur in possessionem uenter, si non est exheredatus et id quod in utero erit inter suos heredes futurum erit.
However, the womb is sent into possession only when he has not been disinherited and that which is in the womb is going to be among the self-successors.
sed et si incertum sit, aliquo tamen casu possit existere, quo qui editur suus futurus sit, uentrem mittemus: aequius enim est uel frustra nonnumquam impendia fieri quam denegari aliquando alimenta ei, qui dominus bonorum aliquo casu futurus est.
But even if it is uncertain, yet if in some case it can happen that he who is born will be a self-successor, we shall send the womb into possession; for it is more equitable that expenses should sometimes be incurred in vain than that maintenance should at some time be denied to him who in some case is going to be the owner of the property.
§37.9.1.3Quare et si ita exheredatio facta sit: 'si mihi filius unus nascetur, exheres esto', quia filia nasci potest uel plures filii uel filius et fillia, uenter in possessionem mittetur: satius est enim sub incerto eius qui edetur ali etiam eum qui exheredatus sit, quam eum qui non sit exheredatus fame necari: ratumque esse debet, quod deminutum est, quamuis is nascatur, qui repellitur.
Wherefore even if a disinherison was made in this way: 'If one son is born to me, let him be disinherited,' since a daughter can be born, or several sons, or a son and a daughter, the womb will be sent into possession; for, while the identity of the child to be born is uncertain, it is better that even one who has been disinherited should be nourished than that one who has not been disinherited should be starved to death; and what has been diminished must be held valid, even if he is born who is excluded.
§37.9.1.4Idem erit dicendum et si mulier, quae fuit in possessione, abortum fecisset.
The same will have to be said even if the woman, who was in possession, should have had a miscarriage.
§37.9.1.5Sed et si sub condicione postumus sit exheredatus, pendente condicione Pedii sententiam admittimus existimantis posse uentrem in possessionem mitti, quia sub incerto utilius est uentrem ali.
But even if a posthumous child has been disinherited under a condition, while the condition is pending, we accept the opinion of Pedius, who thinks that the womb can be sent into possession, because under uncertainty it is more beneficial that the womb be nourished.
§37.9.1.6Si uenter ab institutis exheredatus sit, a substitutis praeteritus, Marcellus negat in possessionem eum mitti posse uiuentibus institutis, quia exheredatus est: quod uerum est.
If the womb has been disinherited by the instituted heirs, but passed over by the substituted heirs, Marcellus says that he cannot be sent into possession while the instituted heirs are alive, because he is disinherited; which is true.
§37.9.1.7Per contrarium autem si ab institutis praeteritus sit uenter, a substitutis exheredatus, uiuis institutis mittendus est in possessionem: quod si non uiuant, negat mittendum, quia ad eum gradum deuoluta hereditas est, a quo exheredatus est.
Conversely, however, if the womb has been passed over by the instituted heirs, but disinherited by the substituted heirs, he must be sent into possession while the instituted heirs are alive; but if they are not alive, he says he must not be sent, because the inheritance has devolved to that grade from which he was disinherited.
§37.9.1.8Si filius ab hostibus captus sit, uxor eius praegnas in possessionem soceri bonorum mittenda est: nam aliquo casu spes est id quod nascitur inter suos heredes futurum, ut puta si pater eius apud hostes decedat.
If a son has been captured by enemies, his pregnant wife must be sent into possession of the father-in-law's goods; for in some case there is hope that what is born will be among the self-successors, as, for example, if his father should die among the enemies.
§37.9.1.9Sed et si quis uentrem exheredasset: 'qui mihi intra menses tres mortis meae natus erit, exheres esto' uel 'qui post tres menses', uenter in possessionem utique mittetur, quia aliquo casu suus heres futurus est: et sane benigniorem esse praetorem in hanc partem oportebit, ne qui speratur ante uitam necetur.
But even if someone had disinherited the womb: 'whoever is born to me within three months of my death, let him be disinherited' or 'whoever after three months,' the womb will certainly be sent into possession, because in some case he will be a self-successor; and indeed it will be proper for the praetor to be more lenient in this regard, lest he who is expected be destroyed before life.
§37.9.1.10Rectissime autem praetor nusquam uxoris fecit mentionem, quia fieri potest, ut mortis tempore uxor non fuerit, quae se ex eo praegnatem dicit.
And most rightly indeed, the praetor nowhere made mention of 'wife,' because it can happen that she who says she is pregnant by him was not his wife at the time of death.
§37.9.1.11Etiam ex emancipato uenter ad possessionem admittitur.
Even from an emancipated son, the womb is admitted to possession.
unde apud Iulianum libro uicensimo septimo digestorum quaeritur, si emancipatus quis sit uxore iam praegnate, deinde decessisset et pater eius mortuus sit, an uenter in possessionem emancipati patris mitti possit.
Whence in Julian, book twenty-seven of the Digests, it is asked: if someone was emancipated while his wife was already pregnant, and then died, and his father died, whether the womb can be sent into possession of the emancipated father.
et rectissime scripsit rationem non esse, cur uenter, quem edictum admittit, repelli debeat: est enim acquissimum partui consuli, qui natus bonorum possessionem accepturus est.
And he wrote most rightly that there is no reason why the womb, whom the edict admits, should be rejected; for it is most equitable that the offspring be cared for, who when born is going to receive the possession of goods.
sed et si auus uiueret, similiter uentrem admittemus.
But even if the grandfather were alive, we shall similarly admit the womb.
§37.9.1.12Si filius in adoptionem datus decesserit praegnate uxore, tunc deinde adoptator defunctus fuerit, mittetur uenter in possessionem aui adoptiui.
If a son given in adoption has died while his wife was pregnant, and then the adopter has died, the womb will be sent into possession of the adoptive grandfather.
sed an etiam in eius, qui in adoptionem dederat filium, mittetur, uideamus: et si hic nepos postumus heres ab auo naturali institutus sit, mittetur in possessionem, quia et nato ei, si nemo ex liberis sit alius bonorum possessio secundum tabulas dari potest, aut, si sint liberi praeteriti, etiam contra tabulas cum ipsis potest accipere.
But let us see whether it will also be sent into that of him who had given the son in adoption; and if this posthumous grandson was instituted as heir by the natural grandfather, he will be sent into possession, because also when born, if there is no other of the children, the possession of goods in accordance with the tablet can be given to him, or, if there are children passed over, he can also receive it contrary to the tablet with them.
§37.9.1.13Si pater nuru praegnate filium emancipauerit, non in totum repelli uterus debet: namque natus solet patri ex nouo edicto iungi.
If a father, while his daughter-in-law is pregnant, has emancipated his son, the womb ought not to be entirely rejected; for the one born is accustomed to be joined to his father under the new edict.
et generaliter quibus casibus patri iungitur natus, admittendus est uenter in possessionem.
And generally in those cases in which the born child is joined to his father, the womb must be admitted to possession.