[IDEM libro quarto disputationum. ] §49.17.9.prProponebatur filius familias miles testamento facto extraneum heredem scripsisse, patre deinde superstite decessisse, pater deliberante herede instituto et ipse diem functus, deinde heres institutus repudiasse hereditatem.
[THE SAME in the fourth book of Discussions.] The following case was proposed: a soldier who was a son-in-power, having made a will, had designated an outsider as his heir, and then died while his father was still surviving; the father himself, while the designated heir was deliberating, also died; subsequently, the designated heir repudiated the inheritance.
quaerebatur, ad quem castrense peculium pertineret.
It was asked to whom the military peculium belonged.
dicebam castrense peculium filii familias, si quidem testatus decessit, quasi hereditatem deferri heredi scripto, siue extraneum scripsit heredem siue patrem.
I said that the military peculium of a son-in-power, if indeed he died testate, is transferred to the designated heir as if it were an inheritance, whether he designated an outsider or his father as heir.
sed cum nihil de peculio decernit filius, non nunc obuenisse patri, sed non esse ab eo profectum creditur.
But when the son makes no decision regarding the peculium, it is believed not to have come to the father just now, but to be something that did not originate from him.
denique si seruo filii castrensi libertatem pater adscripserit moxque filius uiuo patre defunctus sit, non impeditur libertas, cum, si filius patri superuixerit, impediatur libertas.
Finally, if a father has granted freedom to a slave belonging to his son's military peculium, and shortly thereafter the son dies while the father is alive, the freedom is not impeded; whereas, if the son survives the father, the freedom is impeded.
unde Marcellus putat necessarium quoque heredem seruum filii peculiarem patri existere posse, si filio pater superuixerit.
Hence Marcellus thinks that a slave belonging to the son's peculium can also emerge as a necessary heir for the father, if the father survives the son.
idem referebam et si rem peculiarem filii pater legauerit: nam eodem casu, quo libertatem competere diximus, legatum quoque uel debebitur uel impedietur.
I applied the same rule if the father bequeathed a thing belonging to the son's peculium: for in the same case in which we said freedom is competent, the legacy also will either be due or be impeded.
quibus ita praemissis et in proposito dicebam, cum heres non adiit hereditatem, retro peculium patris bonis accessisse: unde posse dici etiam aucta patris bona per hanc repudiationem.
With these points thus premised, I also said in the proposed case that since the heir did not enter upon the inheritance, the peculium was retroactively added to the father's property; whence it can even be said that the father's property was increased by this repudiation.
nec est nouum, ut ex postfacto aliquis successorem habuisse uideatur.
Nor is it anything new that, by a retroactive event, someone should be deemed to have had a successor.
nam et si filius eius, qui ab hostibus captus est, decesserit patre captiuo uiuo, si quidem pater regrederetur, quasi filius familias peculium haberet: enimuero si ibidem pater decesserit, quasi pater familias legitimum habebit successorem, et retro habuisse creditur eius successor ea quoque, quae medio tempore filius iste quaesiit, nec heredi patris, sed ipsi filio quaesita uidebuntur.
For even if the son of a man captured by the enemy should die while his captive father is alive, if indeed the father returned, the son would be regarded as having held his peculium as a son-in-power; but if the father died in that place, the son will have a lawful successor as if he were a father-of-the-family, and his successor is believed to have held retroactively also those things which that son acquired in the meantime; and these things will be seen as acquired not for the father's heir, but for the son himself.