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Justinian I · The Digest of Justinian §28.6.33.pr-28.6.33.1

Substitution by Mother and Exclusion under Aquilian Formula

Passage 4305 of 9271 · Latin

Summary

Discusses the validity of a mother's substitution for her impuberate son and the exclusion of a substitute heir when a son and posthumous grandson are appointed according to the formula of Gallus Aquilius.

[AFRICANUS libro secundo quaestionum. ] §28.6.33.prSi mater ita testetur, ut filium impuberem, cum erit annorum quattuordecim, heredem instituat eique pupillaribus tabulis, si sibi heres non erit, alium substituat, ualet substitutio.
[AFRICANUS, from the Second Book of Questions.] If a mother should make her will in such a manner that she appoints her impuberate son as heir when he reaches fourteen years of age, and substitutes another for him in pupillary tablets in the event that he does not become her heir, the substitution is valid.
§28.6.33.1Si filius et ex eo nepos postumus ita heredes instituantur, ut Gallo Aquilio placuit, et nepoti, si is heres non erit, Titius substituatur, filio herede existente Titium omnimodo, id est etiam si nepos natus non fuerit, excludi respondit.
If a son and a posthumous grandson by him are appointed heirs in the manner approved by Gallus Aquilius, and Titius is substituted for the grandson in the event that he does not become heir, he answered that if the son becomes the heir, Titius is excluded in any event, that is, even if the grandson is not born.

Notes

  1. §28.6.33.prpupillaribus tabulis — Since a mother lacks paternal power (patria potestas), she cannot strictly make a pupillary substitution. However, this passage shows a legal interpretation where such a designation in her will is upheld as a valid vulgar (ordinary) substitution in the event that the son does not become her heir.
  2. §28.6.33.1ut Gallo Aquilio placuit — Refers to the 'Gallian formula' (formula Galliana) proposed by Gallus Aquilius. It was a drafting device used to institute a posthumous grandson as heir in the event that his father (the son) died before the testator.
  3. §28.6.33.1filio herede existente — An ablative absolute construction. Since the son survived and actually became the heir, there was no possibility of the estate passing to the posthumous grandson, and consequently, Titius, the substitute for the grandson, is excluded.

Cite this passage

Justinian I, The Digest of Justinian §28.6.33.pr-28.6.33.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.33.pr-28.6.33.1

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