Humanitext Reader

Justinian I · The Digest of Justinian §28.1.21.pr-28.1.21.3

Open Designation of Heirs and Continuity in Making Wills

Passage 4111 of 9271 · Latin

Summary

This chunk explains the requirement for naming heirs "openly," the clarifyability and addibility of obscure provisions after the solemnities, the requirement for witnesses to be specificially summoned, and the principle of the continuous act of making a will.

[IDEM libro secundo ad Sabinum. ] §28.1.21.preredes palam ita, ut exaudiri possunt, nuncupandi sint: licebit ergo testanti uel nuncupare heredes uel scribere: sed si nuncupat, palam debet.
[BY THE SAME AUTHOR, in the second book on Sabinus.] Heirs must be named openly in such a manner that they can be heard; therefore, it will be permitted to the testator either to name his heirs orally or to write them; but if he names them orally, he must do so openly.
quid est palam? non utique in publicum, sed ut exaudiri possit: exaudiri autem non ab omnibus, sed a testibus: et si plures fuerint testes adhibiti, sufficit sollemnem numerum exaudire.
What is "openly"? Not necessarily in public, but in such a way that he can be heard; and to be heard not by everyone, but by the witnesses; and if more witnesses have been employed, it is sufficient for the solemn number to hear.
§28.1.21.1Si quid post factum testamentum mutari placuit, omnia ex integro facienda sunt.
If, after a testament has been made, it is decided that something should be changed, everything must be done anew from the beginning.
quod uero quis obscurius in testamento uel nuncupat uel scribit, an post sollemnia explanare possit, quaeritur: ut puta Stichum legauerat, cum plures haberet, nec declarauit de quo sentiret: Titio legauit, cum multos Titios amicos haberet: errauerat in nomine uel praenomine uel cognomine, cum in corpore non errasset: poteritne postea declarare, de quo senserit? et puto posse: nihil enim nunc dat, sed datum significat.
But as to what someone has oralized or written rather obscurely in a testament, it is asked whether he can clarify it after the solemnities: as for example, if he had bequeathed Stichus, when he owned several slaves of that name, and did not declare which one he meant; or if he bequeathed to Titius, when he had many friends named Titius; or if he had erred in the name, first name, or family name, although he had not erred in the object itself; will he be able afterwards to declare whom he meant? And I think he can; for he is not giving anything now, but is indicating what has been given.
sed et si notam postea adiecerit legato uel sua uoce uel litteris uel summam uel nomen legatarii quod non scripserat uel nummorum qualitatem, an recte fecerit? et puto etiam qualitatem nummorum posse postea addi: nam etsi adiecta non fuisset, utique placeret coniectionem fieri eius quod reliquit uel ex uicinis scripturis uel ex consuetudine patris familias uel regionis.
But also if he afterwards added a note to the legacy, either by his own voice or in writing, or a sum, or the name of a legatee which he had not written, or the quality of the money, would he have done so correctly? And I think that even the quality of the money can be added afterwards; for even if it had not been added, it would certainly be accepted that a conjecture of what he left should be made either from the surrounding writings or from the custom of the head of the family or of the region.
§28.1.21.2In testamentis, in quibus testes rogati adesse debent, ut testamentum fiat, alterius rei causa forte rogatos ad testandum non esse idoneos placet.
In testaments in which witnesses must be requested to be present so that the testament may be made, it is held that those who happen to have been requested for another purpose are not suitable to act as witnesses.
quod sic accipiendum est, ut, licet ad aliam rem sint rogati uel collecti, si tamen ante testimonium certiorentur ad testamentum se adhibitos, posse eos testimonium suum recte perhibere.
This must be understood in such a way that, although they were requested or assembled for another purpose, if nevertheless before giving their testimony they are informed that they have been employed for the testament, they can correctly offer their testimony.
§28.1.21.3Uno contextu actus testari oportet.
It is necessary to make a testament in one continuous act.
est autem uno contextu nullum actum alienum testamento intermiscere: quod si aliquid pertinens ad testamentum faciat, testamentum non uitiatur.
Now, to do so in one continuous act means to mix no act foreign to the testament with it; but if one does something pertaining to the testament, the testament is not invalidated.

Notes

  1. §28.1.21.prnuncupandi sint — Subjunctive mood expressing obligation or a general rule ("must be named"). Some manuscripts read the indicative `nuncupandi sunt`.
  2. §28.1.21.prsollemnem numerum — Refers to the "solemn number" or "legal quorum," representing the minimum number of witnesses required under Roman civil law (typically seven).
  3. §28.1.21.1quod uero quis obscurius in testamento uel nuncupat uel scribit — A relative clause introducing the topic of inquiry ("as to what one declares or writes obscurely..."), serving as the grammatical subject/focus for the impersonal `quaeritur` in the main clause.
  4. §28.1.21.1nihil enim nunc dat, sed datum significat — The legal justification for allowing post-solemnity clarifications. It asserts that the testator is not making a new legal disposition at the moment of clarification ("nunc dat"), but is merely declaring the meaning of what has already been legally disposed ("datum significat").
  5. §28.1.21.2alterius rei causa forte rogatos — A perfect participle modifying the omitted noun `testes`. It clarifies that although these individuals were initially requested (rogatos) to assemble for another purpose, they can still become qualified witnesses if they are formally notified (certiorentur) of their role before they bear witness.
  6. §28.1.21.3Uno contextu — A legal technical term meaning "in one continuous act" or "in a single context" (the Principle of Unity of Act), referring to the requirement that the process of making a will must be completed without the intervention of unrelated business.

Cite this passage

Justinian I, The Digest of Justinian §28.1.21.pr-28.1.21.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.1.21.pr-28.1.21.3

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.