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Justinian I · The Digest of Justinian §28.6.34.pr-28.6.34.2

Simultaneous Death and Validity of Pupillary Substitution

Passage 4306 of 9271 · Latin

Summary

This section discusses the validity of a substitution in the case of the simultaneous death of two impuberes, the devolution of pupillary inheritance to a substitute who accepted the father's inheritance, and the continuing validity of pupillary substitution and legacies even when possession of goods contrary to the will is demanded.

[IDEM libro quarto quaestionum. ] §28.6.34.prEx duobus impuberibus ei, qui supremus moreretur, heredem substituit.
[THE SAME, from the Fourth Book of Questions.] He substituted an heir to that one of two impuberes who should die last.
si simul morerentur, utrique heredem esse respondi, quia supremus non is demum qui post aliquem, sed etiam post quem nemo sit, intellegatur, sicut et e contrario proximus non solum is qui ante aliquem, sed etiam is ante quem nemo sit intellegitur.
If they should die at the same time, I answered that there is an heir to both, because "last" is understood to mean not only the one who dies after someone else, but also the one after whom there is no one else, just as, conversely, "nearest" is understood to mean not only the one who is before someone else, but also the one before whom there is no one else.
§28.6.34.1Filium impuberem et Titium heredes instituit: Titio Maeuiuum substituit, filio, quisquis sibi heres esset ex supra scriptis, substituit: Titius omisit hereditatem, Maeuius adiit.
He appointed his impuberate son and Titius as heirs; he substituted Maevius to Titius, and to his son he substituted "whoever of those written above should be his heir." Titius rejected the inheritance, and Maevius accepted it.
mortuo deinde filio putat magis ei soli ex substitutione deferri pupilli hereditatem, qui patris quoque hereditatem adierit.
Afterwards, when the son died, he thinks that it is more correct that the pupillary inheritance is deferred by substitution solely to him who also accepted the inheritance of the father.
§28.6.34.2Etiamsi contra patris tabulas bonorum possessio petita sit, substitutio tamen pupillaris ualet, et legata omnibus praestanda sunt, quae a substitutione data sunt.
Even if possession of goods contrary to the tablets of the father has been demanded, the pupillary substitution nevertheless remains valid, and all legacies must be paid which are given by the substitution.

Notes

  1. §28.6.34.prutrique heredem esse — utrique is a dative meaning "to each of the two," with the implied subject of heredem esse being the substituted heir who was originally designated for "the one who should die last." Since both died at the same time, both satisfy the definition of "last" (after whom there is no one else), meaning the substitution is activated for both of them.
  2. §28.6.34.1quisquis sibi heres esset ex supra scriptis — sibi is an indirect reflexive pronoun referring to the testator (the father). Thus, the clause means "whoever of those written above should be his (the father's) heir." The phrase ex supra scriptis ("from those written above") refers to the co-heir Titius and his substitute Maevius.
  3. §28.6.34.1ei soli... qui patris quoque hereditatem adierit — ei soli is the dative object of deferri, modified by the relative clause qui... adierit ("who also accepted the inheritance of the father"). Since the co-heir Titius rejected (omisit) the inheritance but his substitute Maevius accepted (adiit) it, the pupillary inheritance of the son is deferred solely to Maevius as the only person meeting this condition.

Cite this passage

Justinian I, The Digest of Justinian §28.6.34.pr-28.6.34.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.34.pr-28.6.34.2

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