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Justinian I · The Digest of Justinian §28.6.26.pr

Validity of Pupillary Substitution Upon Birth of a Posthumous Child

Passage 4298 of 9271 · Latin

Summary

The passage discusses the validity of a will and the attribution of inheritance rights when a new child is born after a father has designated a substitute for his impuberate son.

[IDEM libro uicesimo nono digestorum. ] §28.6.26.prSi pater filium impuberem heredem scripserit et ei substituerit, si quis sibi post mortem natus erit, deinde uiuo fratre postumus natus fuerit, testamentum rumpetur: post mortem autem fratris uiuo patre natus solus heres patri suo existet.
[THE SAME, Book 29 of Digests.] If a father has designated his impuberate son as heir and has substituted to him any child who might be born to himself after his death, and subsequently, while the brother is still living, a posthumous child is born, the will will be broken; but one born after the death of the brother while the father is still living will exist as the sole heir to his father.

Notes

  1. §28.6.26.prpostumus — The term postumus, while usually meaning 'posthumous child' (born after the father's death), is used in Roman law to refer more broadly to any child (suus heres) born after the execution of the will. Here, since it refers to a child born 'while the brother is living' (uiuo fratre), i.e., during the father's lifetime, it designates a post-testamentary child whose birth breaks the will.
  2. §28.6.26.pruiuo fratre — An ablative absolute construction consisting of the adjective uiuus and the noun frater, expressing the circumstance 'while the brother is still living'. The phrase uiuo patre (while the father is still living) later in the sentence shares the same construction.
  3. §28.6.26.prsi quis sibi post mortem natus erit — This si clause represents the condition or content of the substitution (substituerit). The reflexive pronoun sibi refers back to the subject of the main clause, pater (the father).

Cite this passage

Justinian I, The Digest of Justinian §28.6.26.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.26.pr

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