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Justinian I · The Digest of Justinian §28.6.16.pr-28.6.16.1

Priority of Conflicting Clauses and Effect of Successive Wills

Passage 4288 of 9271 · Latin

Summary

Pomponius discusses the priority of conflicting clauses within testaments, where the latest writing prevails, and explains the conditions under which prior testaments for a father and a son are revoked or maintained when separate or subsequent testaments are made.

[POMPONIUS libro tertio ad Sabinum. ] §28.6.16.prSi quis eum, quem testamento suo legauit, rursus a substituto filii liberum esse iusserit, liber erit quasi legato adempto: nam et in legato in his testamentis nouissima scriptura erit spectanda, sicut in eodem testamento (uel testamento et codicillis confirmatis) obseruaretur.
[POMPONIUS, Book 3 on Sabinus.] If anyone has ordered a person, whom he bequeathed in his own testament, to be set free again by the substitute of his son, he will be free as if the legacy had been revoked; for in the case of a legacy in these testaments, the latest writing must be regarded, just as would be observed in the same testament (or in a testament and confirmed codicils).
§28.6.16.1Si suo testamento perfecto alia rursus hora pater filio testamentum fecerit adhibitis legitimis testibus, nihilo minus id ualebit et tamen patris testamentum ratum manebit.
If, after his own testament has been completed, a father at another hour again has made a testament for his son, with legitimate witnesses called, this will nevertheless be valid, and yet the father's testament will remain ratified.
nam et si sibi et filio pater testamentum fecisset, deinde sibi tantum, utrumque superius rumpetur.
For even if a father had made a testament for himself and his son, and then for himself only, both of the prior testaments will be revoked.
sed si secundum testamentum ita fecerit pater, ut sibi heredem instituat, si uiuo se filius decedat, potest dici non rumpi superius testamentum, quia secundum non ualet, in quo filius praeteritus sit.
But if the father has made a second testament in such a way as to institute an heir for himself if his son should die while he is alive, it can be said that the prior testament is not revoked, because the second one, in which the son has been passed over, is not valid.

Notes

  1. §28.6.16.prlegato adempto — Meaning "as if the legacy had been revoked," expressed in the ablative absolute. When a contradiction arises where the same slave is bequeathed to someone in one part and ordered to be freed by the son's substitute in another, the latter instruction for manumission is prioritized as the latest writing, and the legacy is treated as tacitly revoked.
  2. §28.6.16.prin his testamentis — The plural "testaments" (testamentis) refers to the two distinct testamentary arrangements usually contained in a single document: the father's own institution of an heir and the pupillary substitution for the son.
  3. §28.6.16.1filius praeteritus sit — Meaning "the son has been passed over." Under Roman law, a household child (suus heres) had to be either instituted as an heir or expressly disinherited in the testament; passing them over in silence (praeteritio) rendered the entire testament invalid. Here, because the second testament is invalid due to this omission, it lacks the power to revoke the prior testament.

Cite this passage

Justinian I, The Digest of Justinian §28.6.16.pr-28.6.16.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.16.pr-28.6.16.1

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