[ULPIANUS libro quadragensimo quarto ad edictum. ] §38.2.12.prSi patronus testamento iure militari facto filium silentio exheredauerit, debebit nocere ei exheredatio: uerum est enim hunc exheredatum esse.
[ULPIANUS from the forty-fourth book on the Edict.] If a patron, by a will made according to military law, has disinherited his son by silence, the disinheriting ought to prejudice him; for it is true that this man has been disinherited.
§38.2.12.1Si quis libertum filio suo adsignauerit eumque exheredauerit, admitti potest ad bonorum liberti possessionem.
If anyone has assigned a freedman to his son and has disinherited him, the son can be admitted to the possession of the freedman's goods.
§38.2.12.2Si quis non mala mente parentis exheredatus sit, sed alia ex causa, exheredatio ipsi non nocet: ut puta pone furoris causa exheredatum eum uel ideo, quia impubes erat, heredemque institutum rogatum ei restituere hereditatem.
If anyone has been disinherited not owing to a hostile intent on the part of the parent, but for some other reason, the disinheriting does not prejudice him: as, for example, suppose that he was disinherited because of madness or because he was under puberty, and the appointed heir was requested to restore the inheritance to him.
§38.2.12.3Si quis, cum esset exheredatus, pronuntiatus uel perperam sit exheredatus non esse, non repellitur: rebus enim iudicatis standum est.
If anyone, although he had been disinherited, was declared, even if erroneously, not to have been disinherited, he is not excluded: for one must stand by res judicata.
§38.2.12.4Si filius patroni exheredatus in partem optinuerit de inofficioso, in partem uictus sit, uideamus, an noceat ei exheredatio.
If a disinherited son of a patron has succeeded in part in a claim of an undutiful will, and been defeated in part, let us consider whether the disinheriting prejudices him.
et nocere arbitror, quia testamentum ualet, a quo exheredatus est.
And I think it does prejudice him, because the will under which he was disinherited remains valid.
§38.2.12.5Ex testamento autem, ex quo neque adita hereditas est neque petita bonorum possessio, liberis exheredatio non nocet: absurdum est enim in hoc tantum ualere testamentum, ut exheredatio uigeat, cum alias non ualeat.
But under a will from which neither has the inheritance been entered upon nor the possession of goods petitioned for, the disinheriting does not prejudice the children: for it is absurd that the will should be valid only in this respect, that the disinheriting remains in force, while in other respects it is not valid.
§38.2.12.6Si patroni filius priore gradu sit heres scriptus, secundo exheredatus, huic non nocet exheredatio, cum uoluntate patris uel extiterit heres uel existere potuerit: neque enim debet uideri pater indignum existimasse filium bonis libertorum, quem ad hereditatem suam primum uocauerit.
If the son of a patron has been written as heir in the first degree, and disinherited in the second, the disinheriting does not prejudice him, since by the will of his father he either became heir or could have done so: for the father ought not to be deemed to have considered unworthy of the freedmen's goods a son whom he first called to his own inheritance.
ac ne eum quidem existimandum est summoueri a bonis liberti, qui a primo gradu exheredatus et idem substitutus est.
And indeed, one must not think that even he is excluded from the freedman's goods, who was disinherited in the first degree and substituted in the same.
ergo is, qui institutus sit heres uel primo gradu uel sequenti uel alio quo gradu, licet exheres sit eodem testamento, non est summouendus a liberti bonis.
Therefore, he who was appointed heir, whether in the first degree, the following, or any other degree, although he is disinherited in the same will, is not to be excluded from the freedman's goods.
§38.2.12.7Si patroni filius emancipatus noluerit adire hereditatem uel qui in potestate est retinere, nihilo minus liberti bonorum possessionem habebit.
If an emancipated son of a patron has refused to enter upon the inheritance, or one under power has refused to retain it, he shall nevertheless have possession of the freedman's goods.