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Justinian I · The Digest of Justinian §28.5.82.pr-28.5.82.1

Share Calculation for Unexpected Children and Reference to Another's Will

Passage 4261 of 9271 · Latin

Summary

The text explains how to calculate inheritance shares when an unexpected number of children (two sons and one daughter) are born, and clarifies that appointing an heir based on what was read from another's will is not a captatory institution.

[PAULUS libro nono quaestionum. ] §28.5.82.prClemens Patronus testamento cauerat, ut, si sibi filius natus fuisset, heres esset, si duo filii, ex aequis partibus heredes essent, si duae filiae, similiter: si filius et filia, filio duas partes, filiae tertiam dederat.
[PAULUS, Questions, book 9.] Clemens Patronus had provided in his will that, if a son should be born to him, he should be his heir; if two sons, they should be heirs in equal shares; if two daughters, likewise; if a son and a daughter, he had given two-thirds to the son and one-third to the daughter.
duobus filiis et filia natis quaerebatur, quemadmodum in proposita specie partes faciemus, cum filii debeant pares esse uel etiam singuli duplo plus quam soror accipere.
Upon the birth of two sons and a daughter, the question arose how we should divide the shares in the case presented, since the sons ought to be equal to each other, and also each of them should receive twice as much as their sister.
quinque igitur partes fieri oportet, ut ex his binas masculi, unam femina accipiat.
Therefore, five shares must be made, so that the males receive two shares each, and the female receives one.
§28.5.82.1Si ita scripserit testator: 'Quanta ex parte me a Titio heredem institutum recitassem, ex ea parte Sempronius mihi heres esto', non est captatoria institutio: plane nullo recitato testamento ab ipso testatore inanis uidebitur institutio remota suspicione captatoriae institutionis.
If a testator should write as follows: "In whatever share I have read out that I was appointed heir by Titius, in that share let Sempronius be my heir," this is not a captatory institution. Clearly, if no will is read out by the testator himself, the institution will be deemed void, once the suspicion of a captatory institution has been removed.

Notes

  1. §28.5.82.prduas partes... tertiam — Latin fractional idiomatic expression. `duas partes` means two-thirds (literally, two parts out of three), and `tertiam` is an ellipsis of `tertiam partem`, meaning one-third.
  2. §28.5.82.prduobus filiis et filia natis — An ablative absolute construction with the noun phrase `duobus filiis et filia` as the logical subject and the perfect participle `natis` as the predicate, expressing time or circumstance ('upon the birth of two sons and a daughter').
  3. §28.5.82.1captatoria institutio — A 'captatory institution' (or captatory designation of an heir), which refers to a reciprocal arrangement where a testator appoints someone as heir on the condition that the latter does the same for them. In Roman law, such institutions are void as contrary to public policy because they encourage hopes of another's death; however, the present case is not captatory because it merely references the proportion read from an existing will.
  4. §28.5.82.1remota suspicione captatoriae institutionis — An ablative absolute construction with the noun `suspicione` (qualified by the genitive `captatoriae institutionis`) as the logical subject and the perfect participle `remota` as the predicate. It means 'the suspicion of a captatory institution having been removed'.

Cite this passage

Justinian I, The Digest of Justinian §28.5.82.pr-28.5.82.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.82.pr-28.5.82.1

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