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Justinian I · The Digest of Justinian §28.5.46.pr

Invalidity of Impossible Conditions in Testamentary Heirship

Passage 4225 of 9271 · Latin

Summary

It is ruled that an impossible condition written in a will (the survival of a non-existent daughter) has no effect, and the appointed heir becomes the heir if the other, possible condition (the survival of the mother) is fulfilled.

[IDEM libro secundo digestorum a Paulo epitomatorum. ] §28.5.46.pr'Si Maeuia mater mea et Fuluia filia mea uiuent, tum mihi Lucius Titius heres esto'. Seruius respondit, si testator filiam numquam habuerit, mater autem superuixisset, tamen Titium heredem fore, quia id, quod inpossibile in testamento scriptum esset, nullam uim haberet.
[THE SAME, in the second book of the Digests epitomized by Paulus.] "If Maevia my mother and Fulvia my daughter are alive, then let Lucius Titius be my heir." Servius replied that if the testator had never had a daughter, but the mother had survived, Titius would nevertheless be the heir, because that which was written in a will which was impossible had no force.

Notes

  1. 28.5.46.prIDEM — Refers to "Alfenus" (Alfenus Varus), the author of the preceding fragment (45.pr).
  2. 28.5.46.prsi testator filiam numquam habuerit, mater autem superuixisset — Condition clauses within the indirect speech (oratio obliqua) introduced by respondere (to reply). Although different tenses (perfect subjunctive habuerit and pluperfect subjunctive superuixisset) are used in parallel, both represent past or completed (or future perfect) events under the historical main verb respondit.
  3. 28.5.46.prid, quod inpossibile in testamento scriptum esset, nullam uim haberet — Reflects the Roman law principle that an impossible condition in a will is treated as if it were not written (pro non scripto habetur). The subjunctive mood in the quia clause and its relative clause (esset, haberet) is due to their subordination within the indirect speech.

Cite this passage

Justinian I, The Digest of Justinian §28.5.46.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.46.pr

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