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Justinian I · The Digest of Justinian §28.2.8.pr

Failure to Disinherit a Son as to a Substitute Heir

Passage 4129 of 9271 · Latin

Summary

Discusses how a substituted heir's appointment is invalid if the son was disinherited with respect to the primary heir but not the substitute, and the son dies before the inheritance is accepted, applying the same rule to a posthumous son.

[POMPONIUS libro primo ad Sabinum. ] §28.2.8.prSi Primo herede instituto filium exheredauero, a Secundo autem substituto non exheredauero et, dum pendet, an prior aditurus sit, filius decesserit, secundum sententiam qua utimur non erit Secundus heres, quasi ab initio inutiliter institutus, cum ab eo filius exheredatus non sit.
[POMPOMIUS, Book 1 on Sabinus.] If, having appointed Primus as heir, I have disinherited my son, but have not disinherited him with respect to Secundus, the substituted heir, and the son dies while it is still pending whether the former will enter upon the inheritance, then according to the opinion we follow, Secundus will not be the heir, as if he had been invalidly appointed from the beginning, since the son was not disinherited with respect to him.
quod si in postumo filio idem acciderit, ut natus uiuo patre a quo exheredatus sit moriatur, eadem dicenda erunt de substituto, quoniam cum est natus filius, loco eius est, qui superstes est.
And if the same should happen in the case of a posthumous son, so that after being born he dies during the lifetime of the father by whom he was disinherited, the same must be said of the substitute, since when the son is born, he is in the position of one who is surviving.

Notes

  1. §28.2.8.prdum pendet, an prior aditurus sit — The indirect question clause an prior aditurus sit (whether the prior heir will enter) functions as the subject of the impersonally used verb pendet (it is pending).
  2. §28.2.8.pra Secundo autem substituto — The preposition a (with the ablative Secundo substituto) is used with exheredauero to denote disinheriting in relation to a specific appointed heir (here, the substitute Secundus).
  3. §28.2.8.pra quo exheredatus sit — The relative pronoun quo (ablative) refers back to patre (father) as its antecedent, indicating that the posthumous son was disinherited by his father. An alternative interpretation taking substituto as the antecedent is contextually impossible because it would contradict the premise that the son was not disinherited with respect to the substitute.

Cite this passage

Justinian I, The Digest of Justinian §28.2.8.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.2.8.pr

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