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Justinian I · The Digest of Justinian §28.5.93.1

Institution Under False Belief and the Imperial Decision

Passage 4272 of 9271 · Latin

Summary

In a case where a testator changed his heir believing a false rumor of the original heir's death, the Emperor, respecting the testator's true intention, ruled that the inheritance belonged to the original heir while requiring her to discharge the legacies made in the later will.

[IDEM imperialium sententiarum in cognitionibus prolatarum ex libris sex primo seu decretorum libro secundo. ] §28.5.93.1Pactumeius Androsthenes Pactumeiam Magnam filiam Pactumeii Magni ex asse heredem instituerat, eique patrem eius substituerat.
[THE SAME, from the first of six books of imperial opinions rendered in judicial hearings, or from the second book of decrees.] Pactumeius Androsthenes had appointed Pactumeia Magna, daughter of Pactumeius Magnus, as sole heir, and had substituted her father for her.
Pactumeio Magno occiso et rumore perlato, quasi filia quoque eius mortua, mutauit testamentum Nouiumque Rufum heredem instituit hac praefatione: 'quia heredes, quos uolui habere mihi contingere non potui, Nouius Rufus heres esto'. Pactumeia Magna supplicauit imperatores nostros et cognitione suscepta, licet modus institutioni contineretur, quia falsus non solet obesse, tamen ex uoluntate testantis putauit imperator ei subueniendum.
After Pactumeius Magnus was killed and a rumor spread as if his daughter too had died, he changed his will and appointed Novius Rufus as heir with this preamble: 'Since I could not obtain for myself the heirs whom I wished to have, let Novius Rufus be heir.' Pactumeia Magna petitioned our emperors, and the judicial hearing having been undertaken, although a motive was contained in the institution, and a false one is not usually prejudicial, nevertheless, the Emperor thought that, based on the intention of the testator, she ought to be relieved.
igitur pronuntiauit hereditatem ad Magnam pertinere, sed legata ex posteriore testamento eam praestare debere, proinde atque si in posterioribus tabulis ipsa fuisset heres scripta.
Therefore, he ruled that the inheritance belonged to Magna, but that she must pay the legacies from the later will, just as if she herself had been written as heir in the later tablets.

Notes

  1. 28.5.93.1mihi contingere non potui — The verb "contingere" is used transitively here in the sense of "to obtain, acquire," taking the accusative "heredes" as its object. "mihi" is a dative of advantage, and the subject of "potui" (first-person singular) is the testator.
  2. 28.5.93.1licet modus institutioni contineretur — "modus" here refers to the "motive" or "reason" (falsa causa) on which the institution of the heir was based. "licet" ("although") governs the imperfect subjunctive "contineretur."
  3. 28.5.93.1proinde atque si — A comparative conditional phrase meaning "just as if," introducing a counterfactual condition with the pluperfect subjunctive "fuisset... scripta."

Cite this passage

Justinian I, The Digest of Justinian §28.5.93.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.5.93.1

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