[IDEM libro secundo responsorum. ] §5.2.16.prFilio, qui de inofficioso matris testamento contra fratrem institutum de parte ante egit et optinuit, filia, quae non egit aut non optinuit, in hereditate legitima fratri non concurrit.
[THE SAME in his Second Book of Opinions.] With respect to a son who, regarding the inofficious testament of his mother, previously brought an action for his share against his brother who had been instituted as heir, and succeeded, a daughter who did not bring an action or did not succeed does not compete with her brother in the statutory inheritance.
§5.2.16.1Contra tabulas filii possessionem iure manumissionis pater accepit et bonorum possessionem adeptus est: postea filia defuncti, quam ipse exheredauerat, quaestionem inofficiosi testamenti recte pertulit: possessio, quam pater accepit, ad irritum reccidit: nam priore iudicio de iure patris, non de iure testamenti quaesitum est: et ideo uniuersam hereditatem filiae cum fructibus restitui necesse est.
A father, by the right of manumission, accepted possession contrary to the tablet of his son’s testament and obtained possession of the goods. Afterwards, the daughter of the deceased, whom he himself had disinherited, rightly carried through the complaint of an inofficious testament. The possession which the father had accepted fell to nothing; for in the prior judgment, inquiry was made concerning the right of the father, not concerning the right of the testament. Therefore, it is necessary that the entire inheritance, together with its fruits, be restored to the daughter.