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Justinian I · The Digest of Justinian §28.5.54.pr

Shares of Later-Appointed Heirs and the Creation of Another As

Passage 4233 of 9271 · Latin

Summary

In a case where a testator instituted the first two heirs for a half-share each and subsequently added three more heirs in equal shares, the question of their respective portions is raised. Marcellus replies that, although the order of institution for the latter three is unclear, according to the text of the will they are deemed to receive the remaining half (another 'as').

[MARCELLUS libro singulari responsorum. ] §28.5.54.prLucius Titius Seio et Sempronio ex semissibus heredibus institutis et ceteris exheredatis inuicem heredem substituit, deinde legata et libertates dedit, postea ita subiecit: 'Cornelius et Sallustius et Uarro aequis partibus heredes sunto, quos inuicem substituo': quaero, quantum uel priores duo ex semissibus instituti uel posteriores habere debeant.
[MARCELLUS, Opinions, Single Book] Lucius Titius, having instituted Seius and Sempronius as heirs to a half-share each and having disinherited the rest, substituted them for each other; next, he gave legacies and grants of freedom; afterwards, he added as follows: "Let Cornelius, Sallustius, and Varro be heirs in equal shares, whom I substitute for each other." I ask how much either the first two instituted for a half-share each, or the latter ones, ought to have.
Marcellus respondit in obscuro esse, Cornelium et Sallustium et Uarronem primo an secundo uel tertio gradu heredes instituere uoluerit: sed secundum scripturam testamenti, quae proponeretur, alterum assem datum eis uideri.
Marcellus replied that it was unclear whether he wished to institute Cornelius, Sallustius, and Varro as heirs in the first, second, or third degree; but according to the writing of the will as propounded, it appeared that another as had been given to them.

Notes

  1. 28.5.54.prex semissibus — Ablative plural of semis (half). It indicates that Seius and Sempronius were each instituted for a half-share (amounting together to one "as", or the whole inheritance).
  2. 28.5.54.prin obscuro esse, Cornelium et Sallustium et Uarronem primo an secundo uel tertio gradu heredes instituere uoluerit — The clause 'in obscuro esse' (to be unclear) is the main predicate in the accusative-with-infinitive construction of Marcellus' response, with the indirect question clause 'uoluerit' (whether he wished...) in the subjunctive functioning as its subject or complement. The implied subject of 'uoluerit' is the testator.
  3. 28.5.54.pralterum assem — Literally 'another as'. In Roman inheritance law, the entire estate is conceptually treated as one 'as' (divided into twelve ounces). Since the first two heirs had already exhausted one full 'as' by their half-shares, the remaining half-share assigned to the subsequent three heirs is fictitiously referred to as 'another as' for the purpose of division.

Cite this passage

Justinian I, The Digest of Justinian §28.5.54.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.54.pr

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