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Justinian I · The Digest of Justinian §28.2.13.pr-28.2.13.2

Proportional Division and Validity of Instituting Heirs

Passage 4134 of 9271 · Latin

Summary

This passage explains the proportional calculation for distributing an estate when both a son and a daughter are born, the rule that a slave's freedom and inheritance cannot be revoked within the same will, and the invalidity of a will due to improper disinheritance, which preserves the son's inheritance rights.

[IULIANUS libro uicesimo nono digestorum. ] §28.2.13.prSi ita scriptum sit: 'si filius mihi natus fuerit, ex besse heres esto: ex reliqua parte uxor mea heres esto.
[JULIANUS, Book 29 of the Digests.] If it should be written as follows: "If a son is born to me, let him be heir to eight-twelfths; let my wife be heir to the remaining part.
si uero filia mihi nata fuerit, ex triente heres esto: ex reliqua parte uxor heres esto', et filius et filia nati essent, dicendum est assem distribuendum esse in septem partes, ut ex his filius quattuor, uxor duas, filia unam partem habeat: ita enim secundum uoluntatem testantis filius altero tanto amplius habebit quam uxor, item uxor altero tanto amplius quam filia: licet enim suptili iuris regulae conueniebat ruptum fieri testamentum, attamen cum ex utroque nato testator uoluerit uxorem aliquid habere, ideo ad huiusmodi sententiam humanitate suggerente decursum est, quod etiam Iuuentio Celso apertissime placuit.
But if a daughter is born to me, let her be heir to four-twelfths; let my wife be heir to the remaining part," and both a son and a daughter are born, it must be said that the whole estate should be distributed into seven parts, so that of these the son may have four parts, the wife two, and the daughter one. For in this way, according to the will of the testator, the son will have twice as much as the wife, and likewise the wife twice as much as the daughter. For although according to the strict rule of law it would have been fitting that the will be made void, nevertheless, since the testator wished the wife to have something upon the birth of both, for this reason, under the promptings of humanity, recourse was had to a decision of this kind, which also pleased Juventius Celsus most clearly.
§28.2.13.1Regula est iuris ciuilis, qua constitutum est hereditatem adimi non posse: propter quam liber et heres esse iussus, quamuis dominus ademerit eodem testamento libertatem, nihilo minus et libertatem et hereditatem habebit.
It is a rule of the civil law, by which it is established that an inheritance cannot be taken away; because of which, a slave ordered to be free and heir, although his master has taken away his freedom in the same will, will nevertheless obtain both his freedom and the inheritance.
§28.2.13.2Testamentum, quod hoc modo scribitur: 'Titius post mortem filii mei heres esto: filius exheres esto' nullius momenti est, quia filius post mortem suam exheredatus est: quare et contra tabulas paternorum libertorum huiusmodi filius bonorum possessionem accipere poterit.
A will which is written in this manner: "Let Titius be heir after the death of my son; let my son be disinherited" is of no effect, because the son is disinherited after his own death. Therefore, such a son will also be able to obtain possession of goods contrary to the will of his father's freedmen.

Notes

  1. §28.2.13.praltero tanto amplius — This phrase means "as much again" or "twice as much." In the case of a son's birth, the son (8/12) is to have twice as much as the wife (4/12). In the case of a daughter's birth, the wife (8/12) is to have twice as much as the daughter (4/12). To preserve this proportional intent (2:1 and 2:1) when both are born, the estate is divided into seven parts (4:2:1).
  2. §28.2.13.prconueniebat — Although introduced by the concessive conjunction `licet`, the indicative imperfect `conueniebat` is used here. It expresses a past unfulfilled propriety or obligation ("it would have been fitting according to the strict rule of law that the will be broken, though it was not").
  3. §28.2.13.1liber et heres esse iussus — "He who is ordered to be free and heir." Although the subject is not explicitly stated, in this context it refers to a slave (servus) who is simultaneously manumitted and appointed as an heir in the same will.
  4. §28.2.13.2contra tabulas paternorum libertorum — "Contrary to the will of his father's freedmen." Since the son was not validly disinherited during his lifetime, the will is void (nullius momenti) and the son retains his status as heir. Consequently, upon the death of his father's freedmen who left a will, he is entitled as the patron's heir to claim the possession of goods contrary to their will (bonorum possessio contra tabulas).

Cite this passage

Justinian I, The Digest of Justinian §28.2.13.pr-28.2.13.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.2.13.pr-28.2.13.2

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