2.1.144 to 2.1.147

(120) But let us consider, even if there should be a brother or a paternal uncle, whether the heirs mentioned in the will should be preferred to them; for it is stated in a rescript of the Emperor Antoninus that parties who have obtained prætorian possession of an estate in accordance with the terms of a will not properly executed, can, by means of an exception based on fraud defend themselves against parties claiming the estate on the ground of intestacy. (121) It is certain that this rule applies to the wills of males as well as to those of females which were not properly executed, as, for example, where they did not make use of the mere formality of selling the estate, or of speaking the words required for the declaration; and we shall see whether this constitution also applies to the wills of women which have been executed without the authority of their guardians. (122) We are not speaking, however, of those women who are under the legal guardianship of their parents or patrons, but of those who have guardians of another kind that are compelled, even if unwilling, to grant their consent; otherwise it is evident that a parent or a patron cannot be removed by a will made without his sanction. (123) Again, anyone who has a son under his control must take care either to appoint him as his heir or to disinherit him by name; otherwise, if he passes him over in silence this renders his will void. To such an extent is this true, that our preceptors hold that even if the son should die during the lifetime of his father, no one can be an heir under the will, for the reason that the appointment was not valid in the beginning. Authorities of the other school, however, are of the opinion that although the son, if he is living at the time of his father's death, becomes his father's heir on the ground of intestacy, without being barred by the mention of the heirs in the will; still, if he should die before his father, they hold that the said heirs can enter on the estate under the will, without the son being any longer an impediment; for the reason that they think that the will was not valid from the beginning, on account of the son having been passed over.