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Justinian I · The Digest of Justinian §28.2.19.pr

Invalidity of Disinheriting a Son in the Remainder

Passage 4140 of 9271 · Latin

Summary

In a case where a testator appointed his daughter as sole heir and disinherited his son "in the remaining part," Scaeuola answered that the disinheritance was invalid, based on the principle that disinheritances should not be favored or expanded.

[PAULUS libro primo ad Uitellium. ] §28.2.19.prCum quidam filiam ex asse heredem scripsisset filioque, quem in potestate habebat, decem legasset, adiecit 'et in cetera parte 'exheres mihi erit', et quaereretur, an recte exheredatus uideretur, Scaeuola respondit non uideri, et in disputando adiciebat ideo non ualere, quoniam nec fundi exheres esse iussus recte exheredaretur, aliamque causam esse institutionis, quae benigne acciperetur: exheredationes autem non essent adiuuandae.
[PAULUS, Book 1 of Commentary on Vitellius.] When a certain person had written his daughter as heir to the whole estate and had bequeathed ten to his son, whom he had under his power, he added 'and in the remaining part he shall be disinherited as to me.' And when it was asked whether the son seemed to be rightly disinherited, Scaeuola replied that he did not seem to be. In discussing the matter, he added that it was invalid for this reason: because not even a person ordered to be disinherited of a specific piece of land would be rightly disinherited, and the case of the institution of an heir is different, which is to be accepted favorably, whereas disinheritances ought not to be aided.

Notes

  1. §28.2.19.prex asse — Meaning 'from the whole as' (the unit of twelve ounces representing the entire estate), referring to a sole heir to the entire inheritance.
  2. §28.2.19.prexheres mihi erit — A formulaic expression of disinheritance: 'he shall be disinherited as to me.' The dative mihi indicates the person relationally (with respect to the testator).
  3. §28.2.19.prnec fundi exheres — Referring to 'nec fundi exheres esse iussus recte exheredaretur'. A disinheritance limited to a specific piece of land (fundus) is invalid due to the principle of indivisibility of disinheritance. The subjunctive imperfect is used to express a hypothetical comparison (with the protasis 'if he were ordered' implied in the participle 'iussus').
  4. §28.2.19.praliamque causam esse — Accusative with infinitive clause in indirect speech depending on 'adiciebat'. It contrasts two principles of interpretation in Roman private law: the institution of an heir (institutionis) is to be interpreted favorably (benigne acciperetur), whereas disinheritances (exheredationes) must be strictly construed and not aided (non essent adiuuandae).

Cite this passage

Justinian I, The Digest of Justinian §28.2.19.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.2.19.pr

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