Humanitext Reader

Justinian I · The Digest of Justinian §28.2.16.pr

Death of Son and Substitution When Posthumous Child Is Omitted

Passage 4137 of 9271 · Latin

Summary

Africanus discusses the outcome of inheritance when a son is instituted as heir in a will where a posthumous child was omitted, contrasting the case where a grandson is substituted for him with the case where no substitute is appointed.

[AFRICANUS libro quarto quaestionum. ] §28.2.16.prSi filius heres institutus sit omisso postumo filioque substitutus nepos ex eo sit, si interim moriatur filius, postumo non nato nepotem tam patri quam auo suum heredem futurum.
[AFRICANUS, Book 4 of Questions.] If a son has been instituted as heir, a posthumous child being passed over, and a grandson by him has been substituted for the son, if the son dies in the meantime, and the posthumous child is not born, the grandson will be a self-successor both to his father and to his grandfather.
quod si nemo filio substitutus sit et solus ipse institutus sit, tunc quia eo tempore, quo is moriatur, certum esse incipit neminem ex eo testamento heredem fore, ipse filius intestato patri heres existet: sicut euenire solet, cum sub ea condicione, quae in ipsius potestate erit, filius heres institutus, prius quam ei pareret, moriatur.
But if no one has been substituted for the son, and he himself alone has been instituted, then, because at that time when he dies, it begins to be certain that no one will be an heir under that will, the son himself will stand as heir to his intestate father: just as is accustomed to happen when a son, instituted as heir under a condition which is within his own power, dies before he complies with it.

Notes

  1. §28.2.16.prnepotem tam patri quam auo suum heredem futurum — This clause is an accusative with infinitive construction (with 'esse' omitted after 'futurum') in indirect speech, where the main governing verb of opinion is omitted. 'suum heredem' (self-successor, *suus heres*) is a Roman legal term referring to a descendant who was under the decedent's paternal power and becomes independent and an heir immediately upon the decedent's death. The grandson becomes a *suus heres* to his father upon his death, and to his grandfather due to the substitution in the will and the subsequent validity of the will because the posthumous child was not born (*postumo non nato*).
  2. §28.2.16.prprius quam ei pareret — The dative pronoun `ei` refers to the preceding feminine singular noun `condicione` (condition), as the verb `parere` (to obey, to comply with) governs the dative case. The imperfect subjunctive `pareret` is used with `priusquam` (before) to express an unfulfilled event, indicating that the son died before the condition was satisfied.

Cite this passage

Justinian I, The Digest of Justinian §28.2.16.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.2.16.pr

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.