[IULIANUS libro sexagensimo secundo digestorum. ] §49.15.22.prBona eorum, qui in hostium potestatem peruenerint atque ibi decesserint, siue testamenti factionem habuerint siue non habuerint, ad eos pertinent, ad quos pertinerent, si in potestatem hostium non peruenissent: idemque ius in eadem causa omnium rerum iubetur esse lege Cornelia, quae futura esset, si hi, de quorum hereditatibus et tutelis constituebatur, in hostium potestatem non peruenissent.
[IULIANUS, Book 62 of Digests] The property of those who have come into the power of the enemy and have died there, whether they had the capacity to make a will or not, belongs to those to whom it would have belonged if they had not come into the power of the enemy; and by the Cornelian law, the same law is ordered to exist in the same case for all matters as would have existed if those, concerning whose inheritances and guardianships decisions were being made, had not come into the power of the enemy.
§49.15.22.1Apparet ergo eadem omnia pertinere ad heredem eius, quae ipse, qui hostium potitus est, habiturus esset, si postliminio reuertisset.
It is apparent, therefore, that all the same things belong to his heir which he himself, who was captured by the enemy, would have had if he had returned by postliminium.
porro quaecumque serui captiuorum stipulantur uel accipient, adquiri dominis intelleguntur, cum postliminio redierint: quare necesse est etiam ad eos pertineant, qui ex lege Cornelia hereditatem adierint.
Furthermore, whatever the slaves of captives stipulate for or receive is understood to be acquired for their masters when they return by postliminium; wherefore it is necessary that they also belong to those who have entered upon the inheritance under the Cornelian law.
quod si nemo ex lege Cornelia heres extiterit, bona publica fient.
But if no one stands as heir under the Cornelian law, the property shall become public.
legata quoque seruis eorum praesenti die uel sub condicione ad heredes pertinebunt.
Legacies also left to their slaves, whether on a day certain or under a condition, will belong to the heirs.
item si seruus ab extero heres institutus fuerit, iussu heredis captiui adire poterit.
Likewise, if a slave has been instituted as heir by a stranger, he will be able to enter upon the inheritance by the order of the heir of the captive.
§49.15.22.2Quod si filius eius, qui in hostium potestate est, accipit aut stipulatur, id patre priusquam postliminio rediret mortuo ipsi adquisitum intellegitur, etsi uiuo patre decesserit, ad heredem patris pertinebit.
But if the son of him who is in the power of the enemy receives or stipulates for anything, this, if the father dies before returning by postliminium, is understood to be acquired for himself; and even if the son dies while the father is still living, it will belong to the heir of the father.
nam status hominum, quorum patres in hostium potestate sunt, in pendenti est, et reuerso quidem patre existimatur nunquam suae potestatis fuisse, mortuo tunc pater familias fuisse, cum pater eius in hostium potestate perueniret.
For the status of persons whose fathers are in the power of the enemy is in suspense, and if indeed the father returns, the son is deemed never to have been independent, but if the father dies, he is deemed to have been a head of a household at the very time when his father came into the power of the enemy.
§49.15.22.2aPater familias qui habebat filios in potestate duos et uiginti milia, ab hostibus captus est: alter ex filiis acceptis decem milibus alia decem milia adquisiuit: quaeritur patre apud hostes defuncto quid filii habituri sint.
A head of a household who had two sons in his power and twenty thousand sesterces was captured by the enemy; one of the sons, having received ten thousand, acquired another ten thousand. It is asked what the sons will have, the father having died among the enemy.
respondit, si reuersus esset pater, etiam postea adquisita decem milia eius futura fuisse: at cum in captiuitate mortuus sit, communia non fore, sed eius qui adquisiuit.
He answered that if the father had returned, the ten thousand acquired afterwards would also have belonged to him; but since he died in captivity, they will not be common property, but will belong to the one who acquired them.
uiginti autem milia aequaliter diuidenda.
The twenty thousand, however, must be divided equally.
§49.15.22.3Quae peculiari nomine serui captiuorum possident, in suspenso sunt: nam si domini postliminio redierint, eorum facta intelleguntur, si ibi decesserint, per legem Corneliam ad heredes eorum pertinebunt.
Those things which the slaves of captives possess under the name of peculium are in suspense; for if the masters return by postliminium, they are understood to become theirs, but if they die there, they will belong to their heirs by the Cornelian law.
§49.15.22.4Si quis, cum praegnatem uxorem haberet, in hostium potestatem peruenerit, nato deinde filio et mortuo, ibi decesserit, eius testamentum nullum est, quia et eorum, qui in ciuitate manserunt, hoc casu testamenta rumpuntur.
If anyone, having a pregnant wife, has come into the power of the enemy, and, a son having been subsequently born and died, he himself dies there, his will is void, because even the wills of those who have remained in the state are broken in this case.