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Justinian I · The Digest of Justinian §26.2.30.pr

Appointment of Namesakes as Tutor and Proof of Intent

Passage 3776 of 9271 · Latin

Summary

When it is unclear from a will which of two individuals with the same name (father and son) was appointed as a tutor, the one intended by the testator is legally appointed; however, if this cannot be proven, neither can act as tutor.

[PAULUS libro sexto quaestionum. ] §26.2.30.prDuo sunt Titii, pater et filius: datus est tutor Titius nec apparet, de quo sensit testator: quaero quid sit iuris.
[PAULUS, from the sixth book of Questions.] There are two Titii, a father and a son: Titius has been appointed tutor, and it is not clear which of them the testator intended. I ask what the law is on this point.
respondit: is datus est, quem dare se testator sensit: si id non apparet, non ius deficit, sed probatio, igitur neuter est tutor.
He responded: That person has been appointed whom the testator intended to appoint. If this is not clear, it is not the law that is lacking, but the proof; therefore, neither is tutor.

Notes

  1. §26.2.30.prquid sit iuris — The partitive genitive iuris is used with the interrogative pronoun quid, forming an idiomatic expression meaning 'what is the law (on this matter)' or 'what is the legal situation.'
  2. §26.2.30.prquem dare se testator sensit — An accusative-with-infinitive construction with the accusative se and the infinitive dare is used as the object of sensit ('intended', 'had in mind'). The reflexive pronoun se refers to the subject of the main clause, testator. The whole phrase means 'the person whom the testator intended that he himself should appoint.'

Cite this passage

Justinian I, The Digest of Justinian §26.2.30.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:26.2.30.pr

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