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Justinian I · The Digest of Justinian §28.6.24.pr

Mutual Substitution Following Proportions of Original Shares

Passage 4296 of 9271 · Latin

Summary

When several heirs are instituted for different portions and mutually substituted, it is held that the proportions of their substitution should follow their original shares, unless a different intention of the testator is clearly expressed.

[ULPIANUS libro quarto disputationum. ] §28.6.24.prSi plures sint instituti ex diuersis partibus et omnes inuicem substituti, plerumque credendum et ex isdem partibus substitutos, ex quibus instituti sint, ut, si forte unus ex uncia, secundus ex octo, tertius ex quadrante sit institutus, repudiante tertio in nouem partes diuidatur quadrans feratque octo partes qui ex besse institutus fuerat, unam partem qui ex uncia scriptus est: nisi forte alia mens fuerit testatoris: quod uix credendum est, nisi euidenter fuerit expressum.
[ULPIANUS, Book 4 of Disputations.] If several persons are instituted for different portions and all are substituted mutually for one another, it should generally be believed that they are also substituted in the same portions in which they were instituted; so that, if for instance one is instituted for one-twelfth, a second for eight-twelfths, and a third for a quarter, upon the third rejecting his portion, the quarter is to be divided into nine parts, and the one who had been instituted for eight-twelfths is to take eight parts, and the one who was written for one-twelfth is to take one part: unless by chance the intention of the testator was otherwise; which is hardly to be believed, unless it has been clearly expressed.

Notes

  1. §28.6.24.pret ex isdem partibus substitutos — The conjunction et is used in the sense of 'also', emphasizing that they are substituted 'also' in the same portions in which they were instituted. The infinitive esse is omitted after substitutos, and the whole phrase forms an accusative with infinitive clause functioning as the subject of the impersonal gerundive plerumque credendum [esse] ('it should generally be believed that...').
  2. §28.6.24.prex diuersis partibus / ex uncia / ex octo / ex quadrante / ex besse — These terms are based on the Roman system of inheritance division (using the as of 12 ounces as the unit). uncia represents one-twelfth (1 ounce), octo represents eight-twelfths (8 ounces), quadrans represents three-twelfths (3 ounces, i.e., a quarter), and bes represents eight-twelfths (8 ounces). The second heir is referred to as ex octo first and then as ex besse, both denoting the same portion of eight-twelfths.
  3. §28.6.24.prunam partem qui ex uncia scriptus est — In parallel construction with the preceding clause feratque octo partes qui ex besse institutus fuerat, the verb ferat ('let him take') is omitted before the relative clause qui ex uncia scriptus est.
  4. §28.6.24.prquod uix credendum est — A connecting use of the relative pronoun (relative connection). The antecedent of quod is the entire content of the preceding clause nisi forte... (that the intention of the testator was otherwise).

Cite this passage

Justinian I, The Digest of Justinian §28.6.24.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.24.pr

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