[IDEM libro tertio decimo quaestionum. ] §38.2.42.prFilius, qui patri heres exstitit, fratrem exheredatum adrogauit atque ita herede eo relicto defunctus est: bonorum possessionem libertum patris naturalis exheredatus non habebit: nam cui non exheredato talis adoptio noceret, nocere debet exheredato, quoniam poena, quae legibus aut edicto inrogaretur, adoptionis remedio non obliteraretur.
[THE SAME, in the thirteenth book of Questions.] A son, who stood as heir to his father, arrogated his disinherited brother and died, leaving him as his heir: the disinherited brother shall not have the possession of goods of the natural father's freedman. For if such an adoption would harm him even if he were not disinherited, it ought to harm him when disinherited, since a penalty imposed by laws or by the edict should not be effaced by the remedy of adoption.
PAULUS notat: ei, qui alio iure uenit quam eo, quod amisit, non nocet id quod perdidit, sed prodest quod habet: sic dictum est patrono eodemque patronae filio non obesse, quod quasi patronus deliquit, si ut patronae filius uenire possit.
PAULUS notes: to one who comes by another right than that which he lost, what he forfeited does not cause harm, but what he holds is advantageous. Thus it has been said that for a patron who is also the son of a patroness, his delinquency as a patron does not stand in his way, if he can come as the son of the patroness.
§38.2.42.1PAPINIANUS. Castrensium bonorum Titium libertus fecit heredem, ceterorum alium: adita est a Titio hereditas: magis nobis placebat nondum patronum possessionem contra tabulas petere posse.
PAPINIANUS. A freedman made Titius heir to his quasi-military property, and another to the rest; the inheritance was accepted by Titius. It seemed more agreeable to us that the patron cannot yet seek possession contrary to the will.
uerum illa quaestio interuenit, an omittente eo qui reliqua bona accepit perinde Titio adcrescant, ac si partes eiusdem hereditatis accepissent.
But this question arises, whether, if the one who received the remaining property declines, those parts accrue to Titius just as if they had received shares of the same inheritance.
Suerius mihi uidetur intestati iure deferri bona cetera.
It seems more correct to me that the rest of the goods are deferred by the law of intestacy.
Titius igitur heres non poterit inuitare manumissorem, cum Titio nihil auferatur, nec bonis ceteris, quae nondum ad causam testamenti pertinent.
Titius the heir, therefore, cannot summon the manumitter, since nothing is taken away from Titius, nor from the rest of the goods which do not yet pertain to the cause of the will.
§38.2.42.2Cum filius liberti impubes, qui subiectus dicitur, ex prima parte bonorum possessionem accipiat, an patronus defuncti possessionem accipere possit, quaesitum est.
When the impuberal son of a freedman, who is said to be supposititious, receives possession of goods from the first part, it was asked whether the patron of the deceased can receive possession.
et sine dubio qui sequentis gradus sunt, non admittuntur interim: cum enim praecedit alia possessio, qui sequitur accipere non potest.
And without doubt, those who are of the subsequent degree are not admitted in the meantime; for when another possession precedes, the one who follows cannot receive.
plane si contra eum qui subiectus dicitur fuerit iudicatum, data non intellegitur.
Clearly, if judgment was given against him who is said to be supposititious, the possession is not understood to have been given.
sed et in patrono pendente controuersia idem erit dicendum.
But the same must be said of the patron while the controversy is pending.
plane quod ad patroni quoque personam pertinet, differri controuersia debebit.
Clearly, as far as it also concerns the person of the patron, the controversy will have to be deferred.
§38.2.42.3Si falsum liberti testamentum ab aliis in prouincia dictum atque ita res per appellationem extracta esset, defuncta medio tempore patroni filia, quam libertus heredem instituerat, filio mulieris seruauit diuus Marcus eam partem bonorum, quam filia patroni uel iure intestati, si uixisset, habere potuit.
If a forged will of a freedman was asserted by others in a province and the matter was thus dragged out through an appeal, and in the meantime the patron's daughter, whom the freedman had appointed heir, died, the deified Marcus preserved for the woman's son that part of the goods which the patron's daughter could have had, if she had lived, either by right of intestacy.