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Justinian I · The Digest of Justinian §28.6.23.pr

Mutual Substitution of Co-Heirs and Accretion of Shares

Passage 4295 of 9271 · Latin

Summary

Papinian discusses the attribution of portions when a testator designates co-heirs as mutual substitutes for one another, and some accept the inheritance while another rejects it and dies.

[PAPINIANUS libro sexto responsorum. ] §28.6.23.prQui plures heredes instituit, ita scripsit: 'eosque omnes inuicem substituo'.
[PAPINIANUS, Book 6 of Opinions.] A person who instituted several heirs wrote as follows: 'and I substitute them all mutually for one another'.
post aditam a quibusdam ex his hereditatem uno eorum defuncto, si condicio substitutionis exstitit alio herede partem suam repudiante, ad superstites tota portio pertinebit, quoniam inuicem in omnem causam singuli substitui uidebuntur: ubi enim quis heredes instituit et ita scribit: 'eosque inuicem substituo', hi substitui uidebuntur, qui heredes exstiterunt.
After the inheritance had been accepted by some of them, and one of them had died, if the condition of the substitution occurred upon another heir's rejecting his portion, the entire portion will belong to the survivors, since each individual will be deemed to be substituted mutually for every contingency; for when someone institutes heirs and writes as follows: 'and I substitute them mutually for one another', those who have turned out to be heirs will be deemed to be substituted.

Notes

  1. §28.6.23.prpost aditam a quibusdam ex his hereditatem — The preposition post is followed by the accusative noun hereditatem, which is modified by the gerundive aditam. This construction means 'after the inheritance has been accepted'.
  2. §28.6.23.pruno eorum defuncto... alio herede partem suam repudiante — Two ablative absolute constructions appear in succession. The former, with a perfect participle, means 'after one of them had died', while the latter, with a present participle, means 'with another heir rejecting his portion'. These set up the background circumstances for the conditional clause si condicio... exstitit.
  3. §28.6.23.prin omnem causam — Meaning 'for every contingency' or 'in all cases'. It signifies that the mutual substitution applies in any event where a co-heir's portion becomes vacant, without being limited to a specific cause like death or rejection.
  4. §28.6.23.prhi... qui heredes exstiterunt — Exstiterunt is the perfect tense of exsistere ('to emerge', 'to turn out to be'). It refers here to those who successfully established their status as heirs. In the context of mutual substitution, only those who actually become heirs are deemed to be substituted for the vacant portions of others.

Cite this passage

Justinian I, The Digest of Justinian §28.6.23.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.23.pr

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