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Justinian I · The Digest of Justinian §28.5.86.pr

Substitution Conditioned on Childlessness and Intent

Passage 4265 of 9271 · Latin

Summary

This text discusses a will where a brother is appointed as sole heir, and slaves are designated as substitute heirs if the brother fails to inherit or has no children. It addresses whether the slaves inherit when the brother enters upon the inheritance without children, concluding that the testator's intent was to prefer the brother and his children over the substitutes.

[SCAEUOLA libro secundo responsorum. ] §28.5.86.prLucius Titius, qui fratrem habebat, testamento ita cauit: 'Titius frater meus ex asse mihi heres esto: si mihi Titius heres esse noluerit aut (quod abominor) prius morietur quam meam hereditatem adierit aut filium filiamue ex se natum natamue non habebit, tunc Stichus et Pamphilus serui mei liberi et heredes mihi aequis partibus sunto'.
[SCAEUOLA, in the second book of Responses.] Lucius Titius, who had a brother, provided as follows in his will: 'Let my brother Titius be my heir to the whole estate (ex asse); if Titius does not wish to be my heir, or (which I abominate) dies before he enters upon my inheritance, or if he has no son or daughter born of him, then let my slaves Stichus and Pamphilus be free and my heirs in equal shares.' I ask, since Titius entered upon the inheritance and did not have children at the time of entering upon the inheritance, whether Stichus and Pamphilus can be free and heirs by substitution.
quaero, cum Titius hereditatem adierit et liberos aditae hereditatis tempore non habuerit, an Stichus et Pamphilus ex substitutione liberi et heredes esse possint.
Likewise I ask, if they can be neither free nor heirs by substitution, whether they are considered to have been added to a part of the inheritance.
item quaero, si ex substitutione neque liberi neque heredes esse possint, an in partem hereditatis uideantur adiecti.
He replied: it is clear indeed that it was not the intention of the testator to associate anyone as heir with his brother, whom he had openly appointed heir to the whole estate (ex asse).
respondit: apparet quidem non eam mentem testatoris fuisse, ut quemquam heredem adhiberet fratri, quem aperte ex asse heredem instituisset: igitur si frater adiit, Stichus et Pamphilus heredes non erunt: quos eo amplius noluit heredes esse, si frater prius quam hereditatem adiret decessisset liberis relictis.
Therefore, if the brother has entered, Stichus and Pamphilus will not be heirs; whom he was all the more unwilling to be heirs if the brother, before he entered upon the inheritance, had died leaving children.
nam prudens consilium testantis animaduertitur: non enim fratrem solum heredem praetulit substitutis, sed et eius liberos.
For the prudent plan of the testator is perceived: for he preferred as heir to the substitutes not only his brother, but also his brother's children.

Notes

  1. §28.5.86.prex asse — Meaning 'solely' or 'for the entire estate'. Based on the Roman practice of calculating the inheritance as a whole consisting of twelve parts (as), this term indicates the appointment to the entirety (12/12) of the estate.
  2. §28.5.86.prquos eo amplius noluit heredes esse — The connecting relative pronoun 'quos' refers to 'Stichus et Pamphilus' in the preceding sentence. 'eo amplius' is an adverbial phrase meaning 'all the more' or 'much less', logically emphasizing that the testator's rational intent to exclude the slaves from inheritance (preferring the brother's children) would be even stronger if the brother had died leaving children before entering upon the inheritance.
  3. §28.5.86.prpraetulit substitutis — The verb 'praefero' (to prefer) takes an accusative object ('fratrem, eius liberos') and a dative object ('substitutis'). It expresses that the testator preferred the brother and his children as heirs over the substitutes (Stichus and Pamphilus).

Cite this passage

Justinian I, The Digest of Justinian §28.5.86.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.86.pr

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