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Justinian I · The Digest of Justinian §28.5.78.pr

Institution of Heir by Codicil and the Residue

Passage 4257 of 9271 · Latin

Summary

Papinian discusses that if a testator states in his testament that whoever he appoints as heir in a codicil shall be the heir, such an appointment is valid, and the appointed heir is entitled to receive whatever remains undistributed of the inheritance.

[IDEM libro septimo decimo quaestionum. ] §28.5.78.prAsse toto non distributo ita scriptum est: 'quem heredem codicillis fecero, heres esto': Titium codicillis heredem instituit.
[THE SAME, Questions, book 17.] When the entire *as* (inheritance) has not been distributed, it is written as follows: "Whoever I shall have made heir in a codicil, let him be heir"; and he appointed Titius as heir in a codicil.
eius quidem institutio ualet ideo, quod, licet codicillis dari hereditas non possit, tamen haec ex testamento data uidetur: sed hoc tantum ex hereditate habebit, quantum ex asse residuum mansit.
His appointment is indeed valid for the reason that, although an inheritance cannot be given by a codicil, nevertheless this is deemed to have been given by the testament; but he will have only so much of the inheritance as remained as a residue from the *as*.

Notes

  1. §28.5.78.prAsse toto non distributo — Ablative absolute. The 'as' represents the undivided entirety of the estate (consisting of twelve parts) in Roman law.
  2. §28.5.78.prhaec ex testamento data uidetur — The demonstrative pronoun `haec` is the nominative feminine singular referring back to `hereditas`. In principle, an inheritance cannot be directly given by a codicil; however, since a valid testament (testamentum) contained a prior clause confirming the appointment to be made in a codicil, the inheritance is deemed to be given by the testament itself, making it valid.

Cite this passage

Justinian I, The Digest of Justinian §28.5.78.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.78.pr

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