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Justinian I · The Digest of Justinian §28.5.33.pr

Inheritance of the Whole When Appointed Purely and Conditionally

Passage 4212 of 9271 · Latin

Summary

This section explains that if the same person is instituted as heir to one half unconditionally and to the other half conditionally, their acceptance of the unconditional part makes them the heir to the whole regardless of the condition, since a single designated heir inherits the entire estate if no one else is appointed.

[IDEM libro secundo de testamentis ad edictum praetoris urbani. ] §28.5.33.prSi quis ita scripserit: 'Titius ex parte dimidia heres esto: idem Titius ex altera parte dimidia, si nauis ex Asia uenerit, heres esto', cum ex pura institutione adierit heres, quamuis condicio alterius institutionis pendeat, ex asse fit heres, scilicet etiam condicione deficiente, cum non prosit ei condicio quicquam existens: quippe cum non dubitetur, quin, si quis ex parte dimidia heres institutus sit nec praeterea quisquam alius, ipse ex asse heres institui uideatur.
[THE SAME, in the second book on the edict of the urban praetor.] If anyone shall have written thus: "Let Titius be heir to a half part; let the same Titius be heir to the other half part, if a ship shall have come from Asia," when he has accepted the inheritance as heir under the unconditional institution, although the condition of the other institution is pending, he becomes heir to the whole, and of course even if the condition fails, since the condition, even if it is fulfilled, does not benefit him at all; because indeed there is no doubt that, if anyone has been instituted as heir to a half part and no one else besides, he himself is deemed to be instituted as heir to the whole.

Notes

  1. §28.5.33.prex asse — In Roman law, the "as" represents the entirety of the estate (divided into twelve ounces). Thus "ex asse fit heres" means to become the heir to the whole estate.
  2. §28.5.33.prcondicio quicquam existens — The present participle `existens` modifies the noun `condicio` with a conditional or concessive force ("even if the condition comes into existence / is fulfilled"). `quicquam` is an adverbial accusative modifying the intransitive verb `prosit` ("not ... at all").
  3. §28.5.33.prnon dubitetur, quin — A syntax where the negative verb of doubting (here the impersonal passive `dubitetur`) is followed by a `quin` clause with the subjunctive (`uideatur`), meaning "there is no doubt that...".

Cite this passage

Justinian I, The Digest of Justinian §28.5.33.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.33.pr

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