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Justinian I · The Digest of Justinian §28.2.23.pr-28.2.23.1

Readrogation, Prior Disinherison, and Testamentary Validity

Passage 4144 of 9271 · Latin

Summary

This chunk discusses the validity of a prior disinherison for a son who is emancipated and then arrogated again, and explains that a testament is not broken when an instituted heir adopted as a grandson succeeds after his adoptive father's death.

[PAPINIANUS libro duodecimo quaestionum. ] §28.2.23.prFilio, quem pater post emancipationem a se factam iterum adrogauit, exheredationem antea scriptam nocere dixi: nam in omni fere iure sic obseruari conuenit, ut ueri patris adoptiuus filius numquam intellegatur, ne imagine naturae ueritas adumbretur, uidelicet quod non translatus, sed redditus uideretur: nec multum puto referre, quod ad propositum attinet, quod loco nepotis filium exheredatum pater adrogauit.
[PAPINIANUS libro duodecimo quaestionum.] I have said that a previously written disinherison is prejudicial to a son whom his father, after emancipating him, has again arrogated: for in almost every branch of law it is agreed that it should be so observed that he is never understood to be the adoptive son of his true father, lest the truth of nature be overshadowed by an image, namely, because he would seem not transferred, but returned: and I do not think it makes much difference, as far as the present purpose is concerned, that the father arrogated the disinherited son in the place of a grandson.
§28.2.23.1Si Titius heres institutus loco nepotis adoptetur, defuncto postea filio qui pater uidebatur, nepotis successione non rumpitur testamentum ab eo, qui heres inuenitur.
If Titius, having been instituted heir, is adopted in the place of a grandson, and the son, who seemed to be his father, afterwards dies, the testament is not broken through the succession of the grandson by him who is found to be heir.

Notes

  1. §28.2.23.prFilio — Dative complement of the verb `nocere` (to harm/prejudice). The antecedent is `Filio` (dative), modified by the relative clause `quem pater...`. In the following accusative-with-infinitive construction `exheredationem antea scriptam nocere` (dependent on `dixi`), `exheredationem` is the subject accusative.
  2. §28.2.23.prquod... uideretur — A noun clause introduced by `uidelicet` (namely) expressing a fact or reason (`quod` clause). The imperfect subjunctive `uideretur` is used due to the sequence of tenses (consecutio temporum) dependent on the past tense of the main verb (`dixi`), or to express an indirect/subordinate reason.
  3. §28.2.23.1defuncto postea filio — Ablative absolute construction. `defuncto` (participle) and `filio` (noun) agree in the ablative case, expressing time or condition ("afterwards, the son having died"). The noun `filio` is further modified by the relative clause `qui pater uidebatur`.
  4. §28.2.23.1ab eo, qui heres inuenitur — The preposition `ab` with the ablative `eo` (and the relative clause `qui heres inuenitur`) expresses the ablative of personal agent with the passive verb `rumpitur` (is broken). It refers to Titius himself, who is already designated as heir in the testament, meaning 'the testament is not broken by [the accession of] him who is found to be the heir.'

Cite this passage

Justinian I, The Digest of Justinian §28.2.23.pr-28.2.23.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.2.23.pr-28.2.23.1

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