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What has been said of substitution to children below the age of puberty, whether instituted or disinherited, is true also of substitution to afterborn children.
28 An afterborn stranger could and still can be instituted heir, unless conceived of a woman who cannot by law be a man's wife.
26 An afterborn stranger again could not take a legacy; an afterborn stranger being one who on his birth will not be a family heir to the testator; thus a grandson by an emancipated son was held to be an afterborn stranger to his grandfather.
4 And as in many other matters afterborn children are treated on the footing of children born before the execution of the will, so it is ruled that afterborn children, as well as children born before the will was made, may have guardians therein appointed to them, provided that if born in the testator's lifetime they would be family heirs and in his power.
Afterborn children too can employ this remedy, if they can by no other means recover the inheritance. 3 That they may bring the action must be understood to mean, that they may bring it only if absolutely nothing has been left them by the testator in his will: a restriction introduced by our constitution out of respect for a father's natural rights.
Accordingly, even lunatics, deaf persons, afterborn children, infants, children in power, and other persons' slaves are said to have testamentary capacity; for though they cannot make a valid will, they can acquire for themselves or for another under a will made by someone else. 5 External heirs have the privilege of deliberating whether they will accept or disclaim an inheritance.
4 A guardian cannot, however, be appointed for a particular matter or business, because his duties relate to the person, and not merely to a particular business or matter. 5 If a man appoints a guardian to his sons or daughters, he is held to have intended them also for such as may be afterborn, for the latter are included in the terms son and daughter.
Of course an appointment to afterborn children includes all children, and not sons only. 1 Agnates are persons related to one another by males, that is, through their male ascendants; for instance, a brother by the same father, a brother's son, or such son's son, a father's brother, his son or son's son. But persons related only by blood through females are not agnates, but merely cognates.
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