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Justinian I · The Digest of Justinian §28.3.17.pr

Effects of Claim or Abstention by a Passed-Over Son

Passage 4172 of 9271 · Latin

Summary

Discusses that if a passed-over son under paternal power claims his share from his brothers, legacies and manumissions are invalidated, but if he abstains from the inheritance, the testator's will is protected based on equity.

[PAPINIANUS libro quinto responsorum. ] §28.3.17.prFilio praeterito qui fuit in patris potestate neque libertates competunt neque legata praestantur, si praeteritus fratribus partem hereditatis auocauit: quod si bonis se patris abstinuit, licet suptilitas iuris refragari uidetur, attamen uoluntas testatoris ex bono et aequo tuebitur.
[PAPINIANUS, Opinions, Book 5.] Against a passed-over son who was under his father's power, neither grants of freedom take effect nor legacies are paid, if the passed-over son has claimed back a share of the inheritance from his brothers; but if he has abstained from his father's property, although the rigor of the law seems to oppose it, nevertheless the will of the testator shall be protected in accordance with what is good and equitable.

Notes

  1. §28.3.17.prFilio praeterito — The phrase 'Filio praeterito' at the beginning of the sentence is in the dative case, serving as a dative of disadvantage (dativus incommodi) for the subsequent clauses 'neque libertates competunt neque legata praestantur'. It indicates that this disadvantage arises only if the conditional clause (si... auocauit) is fulfilled.
  2. §28.3.17.prtuebitur — This is the third-person singular future tense of the deponent verb tueor (to protect, defend). Here, it is used in a passive sense ('will be protected, maintained') rather than active, with 'uoluntas testatoris' (the will of the testator) as its subject.

Cite this passage

Justinian I, The Digest of Justinian §28.3.17.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.3.17.pr

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