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Justinian I · The Digest of Justinian §28.6.11.pr

Capacity of Substitute Heir Determined at Son's Death

Passage 4283 of 9271 · Latin

Summary

Paulus explains that an instituted heir substituted to a son can take under the substitution if they have capacity at the son's death, and conversely, they may suffer testamentary penalties at the son's death even if they did not at the father's.

[PAULUS libro primo ad Sabinum. ] §28.6.11.prSi is qui heres institutus est filio substitutus sit, nihil oberit ei in substitutione, si tunc capere possit, cum filius decessit.
[PAULUS, Book 1 on Sabinus.] If he who has been instituted heir is substituted to the son, it will be no obstacle to him in the substitution, if he is capable of taking at the time when the son dies.
contra quoque potest poenas in testamento pupilli pati, licet in patris passus non sit.
Conversely also, he can suffer penalties under the testament of the pupil, even though he did not suffer them under that of the father.

Notes

  1. §28.6.11.prcapere — The verb capere (to take) here refers to having the legal capacity (capacitas) to acquire the inheritance. It is sufficient if this capacity exists at the moment of the pupillary heir's death (when the pupillary substitution takes effect), even if it was lacking at the time of the father's death.
  2. §28.6.11.prpoenas ... pati — Meaning 'to suffer penalties,' referring to legal disqualifications or restrictions on inheritance (such as caduciary penalties under Augustus' marriage laws). Suffering this 'under the testament of the pupil' indicates that a legal disadvantage not applicable at the father's death can apply at the pupil's death due to a subsequent change of circumstances.

Cite this passage

Justinian I, The Digest of Justinian §28.6.11.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.11.pr

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