[ULPIANUS libro duodecimo ad Sabinum. ] §38.16.1.prIntestati proprie appellantur, qui, cum possent testamentum facere, testati non sunt.
[ULPIANUS, from the twelfth book on Sabinus.] Those are properly called intestate who, when they could have made a will, did not make one.
sed et is, qui testamentum fecit, si eius hereditas adita non est uel ruptum uel irritum est testamentum, intestatus non improprie dicetur decessisse.
But even a person who made a will, if his inheritance has not been accepted, or if the will is revoked or void, will not improperly be said to have died intestate.
plane qui testari non potuit proprie non est intestatus, puta impubes furiosus uel cui bonis interdictum est: sed hos quoque pro intestatis accipere debemus: eum quoque, qui ab hostibus captus est, quoniam per legem Corneliam successio his defertur, quibus deferretur, si in ciuitate decessisset: nam et eius hereditas fuisse creditur.
Clearly, one who could not make a will is not properly intestate, such as a person under puberty, an insane person, or one who has been interdicted from his goods; but we ought to accept these also as intestate. The same applies to one who has been captured by enemies, since by the Lex Cornelia the succession is deferred to those to whom it would be deferred if he had died in the state; for his inheritance is also believed to have existed.
§38.16.1.1Quaeri poterit, si ex ea, quae in fideicommissa libertate moram passa est, conceptus et natus sit, an suus patri existat.
The question can be asked: if a child is conceived and born from a woman who suffered delay in her fideicommissary freedom, whether he exists as a self-successor to his father.
et cum placeat eum ingenuum nasci, ut est a diuis Marco et Uero et imperatore nostro Antonino Augusto rescriptum, cur non in totum pro manumissa haec habeatur, ut uxor ducta suum pariat? nec mirum sit, ex serua ingenuum nasci, cum et ex captiua rescriptum sit ingenuum nasci.
And since it is held that he is born free, as was rescribed by the divine Marcus and Verus and our Emperor Antoninus Augustus, why should she not be regarded in every respect as a manumitted woman, so that, being taken as a wife, she may give birth to a self-successor? Nor should it be surprising that a free person is born of a slave, since it has also been rescribed that a free person is born of a captive woman.
quare ausim dicere, etsi pater huius pueri eiusdem sortis fuerit, cuius mater moram passa in libertate fideicommissa, ipseque moram passus est, suum eum patri nasci exemplo captiuorum parentium, cum quibus rediit.
Therefore, I would dare to say that, even if the father of this boy had been of the same condition as the mother who suffered delay in her fideicommissary freedom, and he himself suffered delay, he is born as a self-successor to his father, after the example of captive parents with whom he returned.
ergo siue postea pater eius post moram manumittatur, recipiet eum in potestate, siue ante decesserit, definiendum erit suum existere.
Therefore, whether his father is subsequently manumitted after the delay, he will receive him into his power, or if he dies before, it must be determined that he exists as a self-successor.
§38.16.1.2Suos heredes accipere debemus filios filias siue naturales sine adoptiuos.
We ought to accept as self-successors sons and daughters, whether natural or adoptive.
§38.16.1.3Interdum etiam filius suus heres excluditur fisco praelato, ut puta si perduellionis fuerit damnatus pater post mortem suam, hoc quo, ut nec iura sepulchrorum hic filius habeat.
Sometimes even a son who is a self-successor is excluded, with the treasury being preferred, as, for example, if the father is condemned for treason after his death; and this also, so that this son does not even have the rights of sepulcher.
§38.16.1.4Si filius suus heres esse desiit, in eiusdem partem succedunt omnes nepotes neptesque ex eo nati qui in potestate sunt: quod naturali aequitate contingit.
If a son ceases to be a self-successor, all grandsons and granddaughters born of him who are in power succeed to his share; which happens by natural equity.
filius autem suus heres esse desinit, si capitis deminutione uel magna uel minore exiit de potestate.
A son ceases to be a self-successor if he goes out of power by a capitis deminutio, whether major or minor.
quod si filius apud hostes sit, quamdiu uiuit nepotes non succedunt.
But if the son is in the hands of the enemy, as long as he lives, the grandchildren do not succeed.
proinde etsi fuerit redemptus, nondum succedunt ante luitionem: sed si interim decesserit, cum placeat eum statu recepto decessisse, nepotibus obstabit.
Furthermore, even if he has been ransomed, they do not yet succeed before the ransom is paid; but if he dies in the meantime, since it is held that he died with his status restored, he will bar the grandchildren.
§38.16.1.5Sed si quis non desiit esse in potestate, sed numquam coepit, ut puta si filius meus uiuo patre meo ab hostibus captus est, mox ibi me patre familias facto decesserit, nepotes in eius locum succedent.
But if someone did not cease to be in power, but never began to be, as, for example, if my son was captured by the enemy while my father was alive, and soon died there after I was made the head of the family, the grandchildren will succeed to his place.
§38.16.1.6Non minus autem neptes quam nepotes succedent in locum parentium.
And granddaughters no less than grandsons will succeed to the place of their parents.
§38.16.1.7Interdum licet parens alicuius in potestate esse non desierit, sed nec coeperit, tamen dicimus succedentes ei liberos suos existere: ut puta adrogaui eum, cuius filius ab hostibus erat captus, nepos autem in ciuitate: mortuo filio adrogato, mortuo et captiuo apud hostes pronepos iste suus heres mihi erit.
Sometimes, although a person's parent did not cease to be in power, but did not even begin to be, we nevertheless say that his children succeed and exist as his self-successors; as, for example, if I arrogated someone whose son was captured by the enemy, but his grandson was in the state: upon the death of the arrogated son, and the death also of the captive in the hands of the enemy, that great-grandson will be a self-successor to me.
§38.16.1.8Sciendum est autem nepotes et deinceps interdum, etiamsi parentes eos mortis tempore praecesserunt, tamen posse suos heredes existere, quamuis successio in suis heredibus non sit.
It must be known, however, that grandchildren and further descendants sometimes, even if their parents predeceased them at the time of death, can nevertheless exist as self-successors, although there is no succession among self-successors.
quod ita procedit.
This proceeds as follows.
si pater familias testamento facto decesserit exheredato filio, mox deliberante herede instituto filius decessit, postea deinde repudiauit heres institutus: nepos poterit suus heres esse, ut et Marcellus libro decimo scripsit, quoniam nec delata est filio hereditas.
If a head of family dies having made a will, with his son disinherited, and soon, while the appointed heir is deliberating, the son dies, and afterwards the appointed heir rejects the inheritance: the grandson will be able to be a self-successor, as Marcellus also wrote in his tenth book, since the inheritance was never offered to the son.
idem erit dicendum et si filius ex asse sub condicione, quae fuit in arbitrio ipsius, uel nepos sub omni institutus non impleta condicione decesserint: nam dicendum erit suos posse succedere, si modo mortis testatoris tempore uel in rebus humanis uel saltem concepti fuerint: idque et Iuliano et Marcello placet.
The same must be said if a son appointed to the whole estate under a condition that was at his own discretion, or a grandson appointed under any condition, dies without the condition being fulfilled; for it must be said that their self-successors can succeed, provided that at the time of the testator's death they were either in existence or at least conceived; and this is held by both Julian and Marcellus.
§38.16.1.9Post suos statim consanguinei uocantur.
Immediately after self-successors, the consanguinei are called.
§38.16.1.10Consanguineos autem Cassius definit eos, qui sanguine inter se conexi sunt.
Cassius defines consanguinei as those who are connected with each other by blood.
et est uerum eos esse consanguineos, etiamsi sui heredes non extiterunt patri, ut puta exheredatos: sed et si pater eorum deportatus fuerit, nihilo minus eos inter se esse consanguineos, licet patri sui heredes non extitissent: et qui numquam in potestate fuerunt, erunt sibi consanguinei, ut puta qui post captiuitatem patris nascuntur uel qui post mortem.
And it is true that they are consanguinei, even if they did not exist as self-successors to their father, as, for example, if they were disinherited; but even if their father was deported, they are nonetheless consanguinei to each other, although they did not exist as self-successors to their father; and those who were never in power will be consanguinei to each other, as, for example, those who are born after the captivity of their father or after his death.
§38.16.1.11Non solum autem naturales, uerum etiam adoptiui quoque iura consanguinitatis habebunt cum his qui sunt in familia uel in utero uel post mortem patris nati.
Moreover, not only natural but also adoptive children will have the rights of consanguinity with those who are in the family, or in the womb, or born after the death of the father.