[ULPIANUS libro duodecimo ad Sabinum. ] §38.17.1.prSiue ingenua siue libertina mater est, admitti possunt liberi ad hereditatem eius ex senatus consulto Orphitiano.
[ULPIANUS from the twelfth book on Sabinus.] Whether the mother is freeborn or a freedwoman, her children can be admitted to her inheritance under the Orphitian senatus consultum.
§38.17.1.1Si ea sit mater, de cuius statu dubitatur, utrum mater familias sit an filia familias, ut puta quoniam pater eius ab hostibus captus sit: si certum esse coeperit matrem familias esse, liberi admittentur.
If she is a mother whose status is in doubt, whether she is a mistress of a household or a daughter of a household, as for instance because her father was captured by enemies: if it begins to be certain that she is a mistress of a household, her children will be admitted.
unde tractari potest, an medio tempore, dum status pendet, succurri eis per praetorem debeat, ne, si medio tempore decesserint, nihil ad heredem transmittant: et magis est, ut subueniatur, ut in multis casibus placuit.
Hence it can be discussed whether, in the intermediate time while her status is pending, they ought to be relieved by the praetor, lest, if they should die in the intermediate time, they transmit nothing to their heir; and it is more correct that they should be assisted, as has been approved in many cases.
§38.17.1.2Sed et uulgo quaesiti admittuntur ad matris legitimam hereditatem.
But also those born out of wedlock are admitted to the legitimate inheritance of their mother.
§38.17.1.3Interdum et in seruitute quaesito erit concedenda hereditas legitima, ueluti si post moram fideicommissariae libertati matris suae factam natus sit.
Sometimes, a legitimate inheritance must also be granted to one born in servitude, as for example if he was born after a delay occurred regarding the trust-bequeathed freedom of his mother.
certe si post manumissionem matris fuerit natus, licet in seruitute conceptus, ad legitimam eius hereditatem admittetur.
Certainly, if he was born after the manumission of his mother, although conceived in servitude, he will be admitted to her legitimate inheritance.
sed et si apud hostes conceptus a captiua procreatus cum ea rediit, secundum rescriptum imperatoris nostri et diui patris eius ad Quinium Tertullum poterit ex hoc senatus consulto admitti quasi uulgo quaesitus.
But also, if he was conceived among enemies, procreated by a captive mother, and returned with her, according to the rescript of our Emperor and his deified father to Quinius Tertullus, he can be admitted under this senatus consultum as if born out of wedlock.
§38.17.1.4Filio, qui mortis tempore matris ciuis Romanus fuit, si ante aditam hereditatem in seruitutem deducatur, legitima hereditas non defertur nec si postea liber factus sit, nisi forte seruus poenae effectus beneficio principis sit restitutus.
To a son, who was a Roman citizen at the time of his mother's death, if he is reduced to servitude before the inheritance is accepted, the legitimate inheritance is not offered, nor is it if he afterwards became free, unless perchance having been made a slave of punishment he was restored by the favor of the emperor.
§38.17.1.5Sed si matris exsecto uentre filius editus sit, magis dicendum est hunc quoque ad legitimam hereditatem admitti: nam et institutus secundum tabulas et ab intestato unde cognati et multo magis unde legitimi bonorum possessionem petere potuit: argumento est, quod uenter in possessionem ex omni parte edicti mittitur.
But if a son is brought forth by cutting open his mother's womb, it must rather be said that he too is admitted to the legitimate inheritance; for whether appointed under a will, or intestacy under the category of cognates, and much more under the category of legitimate heirs, he could petition for the possession of goods. The proof is that the unborn child is sent into possession under every part of the edict.
§38.17.1.6Qui operas suas ut cum bestiis pugnaret locauit quiue rei capitalis damnatus neque restitutus est, ex senatus consulto Orphitiano ad matris hereditatem non admittebatur: sed humana interpretatione placuit eum admitti.
He who hired out his services to fight with beasts, or who was condemned for a capital crime and not restored, was not admitted to his mother's inheritance under the Orphitian senatus consultum; but by a humane interpretation, it was approved that he be admitted.
idem erit dicendum et si hic filius in εius sit potestate, qui in causa supra scripta sit, posse eum ex Orphitiano admitti.
The same must be said if this son is in the power of one who is in the condition written above, that he can be admitted under the Orphitian.
§38.17.1.7Sed si mater testamento facto filium heredem scripserit uuum sub condicione, cum plures haberet, si condicione pendente possessionem petierit et postea condicio defecit, aequum est ceteris etiam filiis legitimam hereditatem non auferri: quod et Papinianus libro sexto decimo quaestionum scripsit.
But if a mother, having made a will, appointed one son as heir under a condition, although she had several, if while the condition was pending he petitioned for possession, and afterwards the condition failed, it is equitable that the legitimate inheritance not be taken away from the other children as well; which Papinianus also wrote in the sixteenth book of Questions.
§38.17.1.8Capitis minutio saluo statu contingens liberis nihil nocet ad legitimam hereditatem: nam uetus sola hereditas, quae lege duodecim tabularum defertur, capitis minutione peremitur, nouae uel ex lege uel ex senatus consultis delatae non peremuntur capitis deminutione.
A loss of status occurring to children with their liberty preserved does no harm to their legitimate inheritance; for only the old inheritance, which is deferred by the Law of the Twelve Tables, is extinguished by a loss of status, while new ones deferred either by a law or by senatus consulta are not extinguished by a loss of status.
proinde siue quis ante delatam capite minuatur, ad legitimam hereditatem admittetur, nisi magna capitis deminutio interueniat, quae uel ciuitatem adimit, ut puta si deportetur.
Therefore, even if someone suffers a loss of status before the inheritance is deferred, he will be admitted to the legitimate inheritance, unless a major loss of status intervenes, which deprives him of citizenship, as for example if he is deported.
§38.17.1.9'Si nemo filiorum eorumue, quibus simul legitima hereditas defertur, uolet ad se eam hereditatem pertinere, ius antiquum esto'. hoc ideo dicitur, ut, quamdiu uel unus filius uult legitimam hereditatem ad se pertinere, ius uetus locum non habeat: itaque si ex duobus alter adierit, alter repudiauerit hereditatem, ei portio adcrescet.
"If none of the children or of those to whom the legitimate inheritance is deferred at the same time wishes that inheritance to belong to them, let the ancient law prevail." This is said so that, as long as even one child wishes the legitimate inheritance to belong to him, the ancient law may have no place; and so if out of two, one accepts and the other renounces the inheritance, the portion will accrue to him.
et si forte sit filius et patronus, repudiante filio patrono defertur.
And if perchance there is a son and a patron, upon the son renouncing, it is deferred to the patron.
§38.17.1.10Si quis adita matris hereditate per in integrum restitutionem fuerit abstentus, an ius antiquum possit locum habere? uerba admittunt, ut possit: 'uolet ad se', inquit, 'eam hereditatem pertinere': nam et hic non uult, etsi aliquando uoluit: et dico posse ius antiquum locum habere.
If someone, having accepted his mother's inheritance, is kept back from it by a total restitution, can the ancient law have a place? The words admit that it can: "wishes," it says, "that inheritance to belong to him"; for indeed this person does not wish it, although he once did; and I say that the ancient law can have a place.
§38.17.1.11Utrum autem ei defertur successio, qui tunc legitimus deprehenditur, an uero ei, qui tunc, fuit, cum filio defertur? ut puta proponamus fuisse defunctae consanguineum eiusque filium, deliberante filio defunctae consanguineum obisse, mox filium repudiasse matris hereditatem: an consanguinei filius admitti possit? et Iulianus recte putat circa Tertullianum locum esse succedenti adgnato.
But is the succession deferred to him who is found to be the legitimate heir at that time, or indeed to him who was such at the time when it was deferred to the son? For example, let us propose that there was a consanguineous brother of the deceased and his son, and while the deceased's son was deliberating, the brother died, and soon after the son renounced his mother's inheritance: can the brother's son be admitted? And Julianus rightly thinks that regarding the Tertullian senatus consultum there is a place for the succeeding agnate.
§38.17.1.12Quod ait senatus: 'quae iudicata transacta finitaue sunt, rata maneant', ita intellegendum est, ut iudicata' accipere debeamus ab eo cui iudicandi ius fuit, 'transacta' scilicet bona fide, ut ualeat transactio, 'finita' uel consensu uel longo silentio sopita.
What the senatus says: "what things have been judged, settled, or finished, let them remain valid," must be understood in this way: we must accept "judged" as being by one who had the right of judging; "settled" of course in good faith, so that the settlement is valid; and "finished" as quieted either by consent or by long silence.