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Justinian I · The Digest of Justinian §28.5.76.pr

Testamentary Succession of Passed-Over Son as Substitute

Passage 4255 of 9271 · Latin

Summary

This section explains that when a passed-over son is substituted for an instituted heir, his inheritance is based on the will rather than on intestacy, with an analogy to how disinheritance maintains the validity of a will.

[PAPINIANUS libro duodecimo quaestionum. ] §28.5.76.prSi filius substituatur ei, a quo praeteritus est, non ut intestati patris, sed ex testamento habebit hereditatem, quoniam et quolibet alio substituto, si fuisset ab eo exheredatus, inde testamentum inciperet, ubi filius esset exheredatus.
[PAPINIANUS, Questions, book 12.] If a son is substituted to the person by whom he was passed over, he will have the inheritance not as of an intestate father, but under the will, since even if anyone else had been substituted, if the son had been disinherited by the father, the will would have begun to be valid from that point where the son was disinherited.

Notes

  1. §28.5.76.prei, a quo praeteritus est — The demonstrative pronoun "ei" refers to the instituted heir (institutus) for whom the son is substituted, while the antecedent of the relative clause "a quo" is the testator (the father) who passed over the son. This clause outlines the complex situation where the son is substituted to the person by whom he was passed over.
  2. §28.5.76.prquolibet alio substituto — An ablative absolute construction consisting of the pronoun "quolibet alio" and the participle "substituto", expressing a concessive hypothesis: "even if anyone else had been substituted."
  3. §28.5.76.prinde... ubi... — A correlative structure meaning "from that point... where...". It logically indicates that the validity of the testament would "begin" (inciperet) from the very clause where the son was disinherited (exheredatus).

Cite this passage

Justinian I, The Digest of Justinian §28.5.76.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.76.pr

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