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Justinian I · The Digest of Justinian §28.5.20.pr-28.5.20.2

Position of Unassigned Heirs and Shares of Predeceased Heirs

Passage 4199 of 9271 · Latin

Summary

The text discusses the irrelevance of the written position of an heir appointed without a share, and the rules of calculating shares when some of the appointed heirs are already deceased.

[PAULUS libro secundo ad Sabinum. ] §28.5.20.prQuo loco scribatur heres sine parte, utrum primo an medio uel nouissimo, nihil interest. §28.5.20.1Si iam mortuo quadrans, alii dodrans datus sit et alius sine parte scriptus sit, Labeo eum, qui sine parte heres institutus sit, alterum assem habiturum et hanc mentem esse testantis: quod et Iulianus probat et uerum est. §28.5.20.2Quod si uiuus et mortuus ex parte dimidia coniunctim heredes instituti sunt, ex altera alius, aequas partes eos habituros ait, quia mortui pars pro non scripto habetur.
[PAULUS libro secundo ad Sabinum.]\n\nIt makes no difference in what place an heir is appointed without a share, whether first, in the middle, or last.\n\nIf a quarter has been given to someone who is already dead, three-quarters to another, and someone else is appointed without a share, Labeo says that he who has been appointed heir without a share will have another as, and that this was the intention of the testator; which Julian also approves and is correct.\n\nBut if a living person and a dead person are jointly appointed heirs for a half share, and another for the other half, he says that they will have equal shares, because the share of the dead person is held as not written.

Notes

  1. §28.5.20.1Labeo eum, qui sine parte heres institutus sit, alterum assem habiturum et hanc mentem esse testantis — The main governing verb of saying (such as ait or putat) is omitted, introducing the accusative and infinitive construction with Labeo as the subject (eum... habiturum [esse] and hanc mentem esse). The phrase 'alterum assem' (another as) relies on the legal construction where, because the first 'as' (whole estate) is already fully allocated (1/4 + 3/4 = 1), a second 'as' is established for the heir without a share, dividing the total into two 'asses'.
  2. §28.5.20.2eos — This pronoun refers to the surviving joint heir and the other heir appointed for the other half. Since the deceased's share (half of the half, i.e., a quarter) is treated as 'not written' and accrues to the surviving joint heir, the survivor also holds a half, resulting in both having equal shares (a half each).

Cite this passage

Justinian I, The Digest of Justinian §28.5.20.pr-28.5.20.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.20.pr-28.5.20.2

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