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Justinian I · The Digest of Justinian §28.5.2.pr-28.5.2.1

Validity of Instituting Heirs When Shares Are Unspecified

Passage 4181 of 9271 · Latin

Summary

The section discusses the debate between Marcellus and Celsus regarding the interpretation of heir institution conditional on future share specification when no shares are written, and examines the legal implications of different grammatical tenses used in such descriptions.

[IDEM libro secundo ad Sabinum. ] §28.5.2.prCirca eos, qui ita heredes instituti sint: 'ex partibus quas adscripsero', non putat Marcellus eos heredes nullis adscriptis partibus, quemadmodum si ita essent heredes instituti: 'si eis partes adscripsero'.
[THE SAME, from the second book on Sabinus.] Regarding those who have been instituted heirs in this way: 'from the shares which I shall have written down,' Marcellus does not think they are heirs if no shares have been written down, just as if they had been instituted heirs in this way: 'si eis partes adscripsero' (if I shall have written down shares for them).
sed magis est, ut sic utraque institutio accipiatur, si uoluntas defuncti non refragatur: 'ex quibus partibus adscripsero, si minus, ex aequis', quasi duplici facta institutione: quam sententiam Celsus libro sexto decimo digestorum probat.
But it is more acceptable that both institutions be understood in this way, if the will of the deceased does not oppose it: 'from the shares which I shall have written down, and if not, from equal shares,' as if a double institution had been made; which opinion Celsus approves in the sixteenth book of his Digests.
aliter atque probat in illa institutione: 'ex qua parte me Titius heredem scripsit, Seius heres esto': tunc enim si non est a Titio scriptus, nec Seius ab eo, nec immerito: hic enim creditur inesse condicio.
It is otherwise than what he approves in that institution: 'from whatever share Titius has written me down as heir, let Seius be heir'; for in that case, if he has not been written down by Titius, Seius is not written down by him either, and not undeservedly; for a condition is believed to be inherent here.
sed Marcellus haec similia putat.
But Marcellus thinks these cases are similar.
§28.5.2.1Potest autem interesse, utrum ita quis scribat: 'ex his partibus quas adscripsi' an 'adscripsero', ut superiori modo dicas nullis adscriptis partibus nullam esse institutionem: quomodo in illo Marcellus: 'ex his partibus, ex quibus testamento matris scripti fuissent, 'heredes sunto', si intestata mater decesserit, hos non esse institutos.
However, it can make a difference whether someone writes thus: 'from these shares which I have written down' or 'which I shall have written down,' so that in the former case you would say that if no shares have been written down, the institution is void; just as Marcellus says in that case: 'let them be heirs from those shares in which they should have been written down in their mother's will,' if the mother died intestate, these persons are not instituted.

Notes

  1. §28.5.2.prutraque institutio — 'Both institutions' (utraque institutio) refers to the two preceding forms of institution: 'ex partibus quas adscripsero' and 'si eis partes adscripsero'. This indicates that, unless the deceased's intent opposes it, both wordings are to be interpreted as implicitly containing a supplementary equal division in case no shares are specified.
  2. §28.5.2.praliter atque — This comparative construction means 'otherwise than' or 'different from.' It highlights the contrast between the lenient interpretation Celsus allows in the first case (with supplementary equal shares) and his strict judgment in the latter case where Seius's institution depends on Titius's.
  3. §28.5.2.1superiori modo — In the contrast between 'ex his partibus quas adscripsi' and 'an adscripsero', this refers to the former ('which I have written down', perfect tense). If one states they have already written down shares, but in fact none exist, the institution is judged to be void.

Cite this passage

Justinian I, The Digest of Justinian §28.5.2.pr-28.5.2.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.2.pr-28.5.2.1

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