Humanitext Reader

Justinian I · The Digest of Justinian §28.3.7.pr

Validity of a Soldier's Will One Year after Discharge

Passage 4162 of 9271 · Latin

Summary

This section regulates the validity of a soldier's testament made under civil law, where an heir appointable only under military privilege is placed in the first degree and one under common law in the second, and the testator dies more than a year after discharge.

[ULPIANUS libro decimo ad Sabinum. ] §28.3.7.prSi miles iure ciuili testamentum fecerit et primo gradu heredem eum scripserit quem iure militari poterat, secundo eum quem communi iure potest, et post annum missionis decesserit, primus gradus irritus fiet et a secundo incipiet testamentum.
If a soldier has made a testament in accordance with civil law, and in the first degree has appointed as heir one whom he was able to appoint under military law, and in the second degree one whom he is able to appoint under the common law, and dies after a year from his discharge, the first degree will become inoperative, and the testament will begin from the second.

Notes

  1. 28.3.7.prquem iure militari poterat — The infinitive heredem scribere (to appoint as heir) is understood after poterat. Note the contrast between the imperfect poterat (referring to the past capacity under military privilege at the time of making the testament) and the present potest (referring to the general capacity under common law). Since the military privilege expires one year after discharge, the appointment in the first degree, which relied solely on that privilege, becomes void.
  2. 28.3.7.pra secundo incipiet testamentum — The phrase "the testament will begin from the second [degree]" indicates that although the first-degree appointment becomes void, the entire testament does not fail; rather, the second-degree appointment becomes the first valid disposition to take effect.

Cite this passage

Justinian I, The Digest of Justinian §28.3.7.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.3.7.pr

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