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Justinian I · The Digest of Justinian §26.2.28.pr-26.2.28.2

Refusal of Tutelage, Legacies, and Freedmen as Tutors

Passage 3774 of 9271 · Latin

Summary

This chunk discusses the impact of refusing a guardianship on legacies left to the refuser's sons, the appointment process for tutors freed via fideicommissum, and the praetor's discretion regarding a patron's designation of a tutor for a minor freedman.

[PAPINIANUS libro quarto responsorum. ] §26.2.28.prQui tutelam testamento mandatam excusationis iure suscipere noluit, ab his quoque legatis summouendus erit, quae filiis eius relicta sunt, modo si legata filii non affectione propria, sed in honorem patris meruerunt.
[PAPINIANUS, from the fourth book of Responses.] A person who has refused to undertake a guardianship entrusted by testament, by virtue of the right of excuse, shall also be excluded from those legacies which were left to his sons, provided that the sons did not earn the legacies through affection for themselves, but in honor of their father.
Uerbis fideicommissi §26.2.28.1manumissus non iure tutor testamento datur: post libertatem itaque redditam ex uoluntate testatoris ad tutelam uocatur.
A person manumitted by the words of a fideicommissum is not lawfully appointed as a tutor by testament; therefore, after freedom has been restored, he is called to the guardianship in accordance with the will of the testator.
§26.2.28.2Impuberi liberto patronus frustra tutorem dabit, sed uoluntatem eius, si fides inquisitionis congruat, praetor sequetur.
A patron will in vain appoint a tutor for an impuberate freedman, but the praetor will follow his will, if the trustworthiness of the inquiry is consistent.

Notes

  1. §26.2.28.prmodo si legata filii non affectione propria, sed in honorem patris meruerunt — A conditional clause introduced by the conjunction phrase "modo si" ("provided that"). "filii" is the nominative plural, serving as the subject of the verb "meruerunt" (3rd person plural perfect of "merere"). "legata" is the accusative plural object. "affectione propria" is an ablative of means/cause, meaning "by affection felt for them (the sons) themselves."
  2. §26.2.28.1post libertatem itaque redditam — The preposition "post" governs the noun "libertatem" modified by the perfect passive participle "redditam," forming a phrase that expresses the completed event itself ("after the restoration of freedom"), analogous to the "ab urbe condita" construction.
  3. §26.2.28.2si fides inquisitionis congruat — "inquisitio" refers to the official inquiry conducted by the praetor to evaluate the suitability of the prospective tutor. The clause means "if the reliability/credit of the inquiry is consistent (with the patron's choice)," i.e., if the praetor's investigation confirms that the person designated by the patron is fit to be a tutor.

Cite this passage

Justinian I, The Digest of Justinian §26.2.28.pr-26.2.28.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.2.28.pr-26.2.28.2

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