[ULPIANUS libro quarto decimo ad edictum. ] §5.2.8.11Unde si quis fuit institutus forte ex semisse, cum ei sextans ex substantia testatoris deberetur, et rogatus esset post certum temporis restituere hereditatem, merito dicendum est nullum iudicium mouere, cum debitam portionem et eius fructus habere possit: fructus enim solere in Falcidiam imputari non est incognitum.
Hence, if anyone was instituted, say, to a half-share, although a sixth part of the testator's property was due to him as his forced share, and he was requested to restore the inheritance after a certain time, it must rightly be said that he cannot bring any lawsuit, since he can have his due share and its fruits; for it is not unknown that fruits are accustomed to be imputed to the Falcidian portion.
ergo et si ab initio ex semisse heres institutus rogetur post decennium restituere hereditatem, nihil habet quod queratur, quoniam facile potest debitam portionem eiusque fructus medio tempore cogere.
Therefore, even if from the beginning an heir instituted to a half-share is requested to restore the inheritance after ten years, he has no ground for complaint, since he can easily collect his due share and its fruits in the meantime.
§5.2.8.12Si quis et irritum dicat testamentum uel ruptum et inofficiosum, condicio ei deferri debet, utrum prius mouere uolet.
If anyone claims that a testament is void or ruptured and also inofficious, a choice ought to be offered to him, which of the two he wishes to bring first.
§5.2.8.13Si filius exheredatus in possessione sit hereditatis, scriptus quidem heres petet hereditatem, filius uero in modum contradictionis querellam inducat, quemadmodum ageret, si non possideret, sed peteret.
If a disinherited son is in possession of the inheritance, the instituted heir indeed will demand the inheritance, but the son will bring the complaint by way of defense, just as he would act if he were not possessing, but demanding.
§5.2.8.14Meminisse autem oportebit eum, qui testamentum inofficiosum improbe dixit et non optinuit, id quod in testamento accepit perdere et id fisco uindicari quasi indigno ablatum.
Moreover, it will be necessary to remember that he who has unjustly declared a testament inofficious and has not succeeded, loses that which he received in the testament, and it is claimed by the treasury as taken from an unworthy person.
sed ei demum aufertur quod testamento datum est, qui usque ad sententiam iudicum lite improba perseuerauerit: ceterum si ante sententiam destitit uel decessit, non ei aufertur quod datum est: proinde et si absente eo secundum praesentem pronuntietur, potest dici conseruandum ei quod accepit.
But that which was given by the testament is taken away only from him who has persisted in the unjust lawsuit up to the sentence of the judges; on the other hand, if he desisted or died before the sentence, that which was given is not taken away from him. Accordingly, even if judgment is pronounced in favor of the party present in his absence, it can be said that what he received is to be preserved for him.
eo autem solo carere quis debet, cuius emolumentum ad eum pertinet: ceterum si id rogatus fuit restituere, non debet iniuria fieri.
Furthermore, a person ought to be deprived only of that whose benefit belongs to him; on the other hand, if he was requested to restore it, no injustice ought to be done to him.
unde non male Papinianus libro secundo responsorum refert, si heres fuit institutus et rogatus restituere hereditatem, deinde in querella inofficiosi non optinuit, id quod iure Falcidiae potuit habere solum perdere.
Whence Papinianus, in the second book of Opinions, not badly reports that if anyone was instituted heir and requested to restore the inheritance, and then did not succeed in the complaint of an inofficious testament, he loses only that which he could have held by right of the Falcidian law.
§5.2.8.15Si quis impubes adrogatus sit ex his personis, quae et citra adoptionem et emancipationem queri de inofficioso possunt, hunc puto remouendum a querella, cum habeat quartam ex constitutione diui Pii.
If an impuberal person is arrogated, being one of those persons who even without adoption or emancipation can complain of an inofficious testament, I think he ought to be barred from the complaint, since he has the fourth by the constitution of the divine Pius.
quod si egit nec optinuit, an quartam perdat? et puto aut non admittendum ad inofficiosum, aut si admittatur, etsi non optinuerit, quartam ei quasi aes alienum concedendam.
But if he brought the action and did not succeed, does he lose the fourth? And I think that either he is not to be admitted to the complaint, or if he is admitted, even if he has not succeeded, the fourth must be granted to him as if it were a debt.
§5.2.8.16Si ex causa de inofficiosi cognouerit iudex et pronuntiauerit contra testamentum nec fuerit prouocatum, ipso iure rescissum est: et suus heres erit secundum quem iudicatum est et bonorum possessor, si hoc se contendit: et libertates ipso iure non ualent: nec legata debentur, sed soluta repetuntur aut ab eo qui soluit: aut ab eo qui optinuit et haec utili actione repetuntur.
If the judge has tried the case concerning the inofficious testament and has pronounced against the testament, and there was no appeal, it is rescinded by operation of law. And he in whose favor judgment was given will be a self-successor and a possessor of goods, if he so claims; and the manumissions are invalid by operation of law; nor are legacies owed, but if paid, they are recovered either by him who paid or by him who succeeded, and these are recovered by an equitable action.
fere autem si ante controuersiam motam soluta sunt, qui optinuit repetit: et ita diuus Hadrianus et diuus Pius rescripserunt.
Generally, however, if they were paid before the controversy was raised, he who succeeded recovers them; and so the divine Hadrian and the divine Pius replied by rescript.
§5.2.8.17Plane si post quinquennium inofficiosum dici coeptum est ex magna et iusta causa, libertates non esse reuocandas, quae competierunt uel praestitae sunt, sed uiginti aureos a singulis praestandos uictori.
Clearly, if after five years the testament begins to be declared inofficious for a great and just cause, the manumissions which have become effective or have been granted are not to be revoked, but twenty aurei must be paid to the victor by each of them.