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Justinian I · The Digest of Justinian §28.5.48.pr-28.5.48.2

Correction of Heir Designation and Shares with Posthumous Children

Passage 4227 of 9271 · Latin

Summary

Cases concerning the interpretation of wills by Africanus, involving the correction of an heir's designation, the proportional calculation of shares upon the birth of posthumous children, and the division of inheritance when unciae and indefinite parts are mixed.

[IDEM libro quarto quaestionum. ] §28.5.48.prSi ita scriptum fuerit: 'Titius, immo Seius heres esto', Seium solum heredem fore respondit.
[BY THE SAME, in the fourth book of Questions.] If it should be written: "Let Titius, or rather Seius, be heir," he replied that Seius alone would be heir.
sed et si ita: 'Titius heres esto: immo Seius heres esto', idem erit dicendum.
But even if it were written: "Let Titius be heir: or rather let Seius be heir," the same must be said.
§28.5.48.1Quidam testamento ita heredes instituit: 'Titia filia mea heres esto: si quid mihi liberorum me uiuo mortuoue nascetur, tunc qui uirilis sexus unus pluresue nascentur, ex parte dimidia et quarta, qui feminini sexus una pluresue natae erunt, ex parte quarta mihi heres sit': postumus ei natus est: consulebatur, quota ex parte postumus heres esset.
A certain person appointed heirs in his will as follows: "Let my daughter Titia be heir: if any child is born to me during my lifetime or after my death, then if one or more of the male sex are born, let him be my heir for a half and a fourth part; if one or more of the female sex are born, let her be my heir for a fourth part." A posthumous son was born to him; it was asked for what share the posthumous son was heir.
respondit eam hereditatem in septem partes distribuendam, ex his filiam quattuor, postumum tres habituros, quia filiae totus as, postumo dodrans datus est, ut quarta portione amplius filia quam postumus ferre debeat.
He replied that the inheritance must be divided into seven parts, of which the daughter would have four and the posthumous son three, because the whole as was given to the daughter, and a dodrans to the posthumous son, so that the daughter ought to take a fourth part more than the posthumous son.
ideo si postuma quoque nata esset, tantundem sola filia, quantum uterque postumorum habituri essent.
Therefore, if a posthumous daughter had also been born, the daughter alone would have as much as both of the posthumous children would have had.
itaque in proposito cum as filiae, dodrans postumo sit datus, uiginti unam partes fieri, ut filia duodecim, nouem filius habeat.
Thus, in the case proposed, since an as was given to the daughter and a dodrans to the posthumous son, twenty-one parts are made, so that the daughter has twelve and the son nine.
§28.5.48.2In testamento ita scriptum est: 'Lucius Titius ex duabus unciis, Gaius Attius ex parte una, Maeuius ex parte una, Seius ex partibus duabus heredes mihi sunto': consulebatur quid iuris esset.
In a will it was written as follows: "Let Lucius Titius from two unciae, Gaius Attius from one part, Maeuius from one part, and Seius from two parts, be heirs to me." It was asked what the law was.
respondit hanc scripturam illam interpretationem accipere posse, ut Lucius Titius duas uncias habeat, ceteri autem quasi sine partibus instituti ex reliquo dextante heredes sint: quem dextantem ita diuidi oportet, ut Seius quincuncem, Attius et Maeuius alterum quincuncem habeant.
He replied that this writing can admit of the interpretation that Lucius Titius has two unciae, and the others, being appointed as if without shares, are heirs to the remaining dextans; which dextans ought to be divided in such a way that Seius has a quincunx, and Attius and Maeuius have the other quincunx.

Notes

  1. 28.5.48.primmo — A corrective particle. Whether it directly corrects a noun within a single clause (Titius, immo Seius) or is placed between two independent institution clauses (Titius heres esto: immo Seius heres esto), the testator's final corrective intent prevails, leading to the same conclusion that only the latter becomes the heir.
  2. 28.5.48.1ex parte dimidia et quarta — Represents a single share consisting of a half (dimidia) plus a fourth (quarta), which equals three-fourths (nine-twelfths, or dodrans).
  3. 28.5.48.1quarta portione amplius — Ablative of measure of difference. Modifying the comparative amplius (more), it means 'more by a fourth part,' indicating that the daughter's share (1) is larger than the posthumous son's (3/4) by exactly one-fourth.
  4. 28.5.48.1habituri essent — Although the grammatical subject is the singular pronoun uterque ('each of the two'), it refers semantically to 'both the posthumous son and daughter,' resulting in a plural verb and participle by 'agreement according to sense' (synesis).
  5. 28.5.48.2quasi sine partibus instituti — A participial phrase modifying ceteri (Attius, Maeuius, and Seius). Since their shares are designated by relative 'parts' (partes) rather than absolute units like 'uncia', they are treated as if appointed as a group without specific absolute shares from the remaining dextans (10 unciae) left after deducting Lucius Titius's 2 unciae.

Cite this passage

Justinian I, The Digest of Justinian §28.5.48.pr-28.5.48.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.48.pr-28.5.48.2

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