[IDEM libro tertio decimo ad Sabinum. ] §38.17.2.prSiue ingenua sit mater siue libertina, Filium autem uel filiam accipere debemus, siue iuste sint procreati uel uulgo quaesiti: idque in uulgo quaesitis et Iulianus libro quinquagensimo nono digestorum scripsit.
[THE SAME, from the thirteenth book on Sabinus.] Whether the mother is freeborn or a freedwoman. Moreover, we must understand "son" or "daughter" as including those who are lawfully procreated or born out of wedlock; and Julianus also wrote this regarding those born out of wedlock in the fifty-ninth book of his Digests.
§38.17.2.1Sed si filius uel filia libertini sint effecti, mater legitimam hereditatem uindicare non poterit, quoniam mater esse huiusmodi filiorum desiit: idque et Iulianus scripsit et constitutum est ab imperatore nostro.
But if a son or a daughter has been made a freedman, the mother will not be able to claim the legitimate inheritance, since she has ceased to be the mother of such children; and Julianus wrote this, and it has been established by our Emperor.
§38.17.2.2Sed si in seruitute concepit filium et manumissa ediderit, ad legitimam eius hereditatem admittetur: idemque et si serua poenae concepit et restituta edidit: hoc idem et si libera concepit, edidit serua poenae, mox restituta est: sed et si libera concepit et in seruitutem redacta edidit, mox manumissa est, ad legitimam hereditatem eius admittetur.
But if she conceived a son in servitude and brought him forth after being manumitted, she will be admitted to his legitimate inheritance; and the same if she conceived as a slave of punishment and brought him forth after being restored; this same is true if she conceived while free, brought him forth as a slave of punishment, and was soon restored; but also if she conceived while free and, having been reduced to servitude, brought him forth, and was soon manumitted, she will be admitted to his legitimate inheritance.
item si adhuc praegnas manumissa est, dicendum erit prodesse.
Likewise, if she was manumitted while still pregnant, it must be said to benefit her.
et in seruitute editi filii ad legitimam hereditatem mater admittetur, ut puta si post moram factam in fideicommissa libertate peperit, uel apud hostes et cum eo rediit, uel si redempta edidit.
And the mother will be admitted to the legitimate inheritance of a son born in servitude, as for example if she gave birth after a delay occurred regarding her trust-bequeathed freedom, or among enemies and returned with him, or if she brought him forth after being ransomed.
§38.17.2.3Si mulier sit famosa, ad legitimam hereditatem liberorum admittetur.
If a woman is of ill repute, she will be admitted to the legitimate inheritance of her children.
§38.17.2.4Impuberem, cui pater secundas tabulas fecit, tunc certum est intestatum decessisse, cum omiserint substituti hereditatem eius.
An underage child, for whom his father made a second will, is certain to have died intestate at the time when the substituted heirs have renounced his inheritance.
quare et si impubes adrogatus sit, dicendum est matrem ad bona eius admitti, quae haberet, si intestatus decessisset.
Therefore, even if the underage child was arrogated, it must be said that the mother is admitted to his goods which he would have had if he had died intestate.
§38.17.2.5Liberi defuncti sui quidem obstabunt matri eius tam uirilis sexus quam feminini, tam naturales quam adoptiui matremque excludunt, bonorum possessores uero etiam non sui et quidem soli naturales.
The children of the deceased who are indeed "his own heirs" (sui heredes), whether male or female, natural or adoptive, will stand in the way of his mother and exclude her; but possessors of goods, even if they are not "his own heirs," do so too, provided they are natural children only.
adoptiui autem liberi post emancipationem ita admittuntur, si ex liberis naturalibus fuerint, ut puta nepos naturalis ab auo adoptatus: nam licet sit emancipatus, bonorum possessione accepta matri obstabit.
Adoptive children, however, after emancipation, are admitted in this way only if they were among the natural children, as for example a natural grandson adopted by his grandfather; for although he is emancipated, upon accepting the possession of goods, he will stand in the way of the mother.
§38.17.2.6Si uero apud hostes est filius uel nasci speratur, pendet ius matris, donec redierit uel nascatur.
But if the son is among enemies or is expected to be born, the right of the mother is pending until he returns or is born.
§38.17.2.7Sed si sint sui heredes, uerum hereditas ad eos non pertineat, uideamus, an mater admittatur, ut puta abstinuit se hereditate.
But if there are "their own heirs" (sui heredes), yet the inheritance does not belong to them, let us see whether the mother is admitted, as for example if they abstained from the inheritance.
§38.17.2.8Africanus et Publicius temptant dicere in casum, quo se abstinent sui, matrem uenire, et tunc ei obstent, quotiens rem haberent, ne nudum nomen sui heredis noceat matri: quae sententia aequior est.
Africanus and Publicius attempt to say that the mother comes in for the case in which "their own heirs" abstain, and that they stand in her way then only as often as they would hold the property, lest the bare name of "his own heir" do harm to the mother; which opinion is more equitable.
§38.17.2.9Sed si quis decessisset relicta filia, quam in adoptionem legitime dederat, relicta et matre, diuus Pius decreuit cessare senatus consultum Tertullianum et simul esse admittendas ad bonorum possessionem unde proximi cognati matrem et filiam.
But if someone had died leaving a daughter whom he had lawfully given in adoption, and also leaving his mother, the deified Pius decreed that the Tertullian senatus consultum ceases to apply, and that the mother and the daughter are to be admitted at the same time to the possession of goods under the category of nearest cognates.
sed quod idem Iulianus scripsit matrem ex senatus consulto non posse admitti, si filia in bonorum possessione petenda cessauerit, uerum non erit: succedit enim filiae.
But what the same Julianus wrote, that the mother cannot be admitted under the senatus consultum if the daughter failed to petition for the possession of goods, will not be true; for she succeeds the daughter.
et ideo dicendum erit matrem, donec filia bonorum possessionem petere potest, bonorum possessionem accipere non posse, quoniam succedere quasi legitima speraretur.
And therefore it must be said that, as long as the daughter can petition for the possession of goods, the mother cannot receive the possession of goods, since she would be expected to succeed as if she were a legitimate heir.
§38.17.2.10Si bonorum possessione accepta filius emancipatus abstinuerit se hereditate per in integrum restitutionem, uerum est senatus consultum posse locum habere: sed si fuerit rursus immixtus, rursus debet mater abstinere.
If, after accepting the possession of goods, an emancipated son abstains from the inheritance by a total restitution, it is true that the senatus consultum can have place; but if he is mixed up in it again, the mother must again abstain.