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Justinian I · The Digest of Justinian §28.6.39.pr-28.6.39.2

Division and Pupillary Substitution between Grandsons

Passage 4311 of 9271 · Latin

Summary

This chunk discusses a legal arrangement advised by Labeo and others for a grandfather to divide his estate equally between two minor grandsons when only one was under his power, the substitution of different heirs for a minor son depending on different events, and the accrual of an unsubstituted share of a deceased heir to the substitute.

[IAUOLENUS libro primo ex posterioribus Labeonis. ] §28.6.39.prCum ex filio quis duos nepotes impuberes habebat, sed alterum eorum in potestate, alterum non, et uellet utrumque ex aequis partibus heredem habere et, si quis ex his impubes decessisset, ad alterum partem eius transferre: ex consilio Labeonis Ofilii Cascellii Trebatii eum quem in potestate habebat solum heredem fecit et ab eo alteri dimidiam partem hereditatis, cum in suam tutelam uenisset, legauit: quod si is, qui in potestate sua esset, impubes decessisset, alterum heredem ei substituit.
[JAVOLENUS, from his first book of epitomes of Labeo's posthumous works.] When a person had two minor grandsons by his son, but one of them was under his power and the other was not, and he wished to have both as heirs in equal shares, and, if either of them should die under age, to transfer his share to the other: by the advice of Labeo, Ofilius, Cascellius, and Trebatius, he made only the one whom he had under his power his heir, and bequeathed from him to the other half of the inheritance, when the latter should have come into his own guardianship; and if the one who was under his power should die under age, he substituted the other as his heir.
§28.6.39.1Filio impuberi in singulas causas alium et alium heredem substituere possumus, ueluti ut alius, si sibi nullus filius fuerit, et alius, si filius fuerit et impubes mortuus fuerit, heres sit.
We can substitute different heirs for a minor son for individual events, for instance, so that one person is the heir if no son is born to him, and another is the heir if a son is born and dies under age.
§28.6.39.2Quidam quattuor heredes fecerat et omnibus heredibus praeter unum substituerat: unus ille, cui non erat quisquam substitutus, et ex ceteris alter uiuo patre familias decesserant.
A certain person had appointed four heirs, and had substituted heirs for all except one; that one for whom no one had been substituted, and another of the remaining heirs, died while the father of the family was still living.
partem, cui nemo erat substitutus, ad substitutum quoque pertinere Ofilius Cascellius responderunt, quorum sententia uera est.
Ofilius and Cascellius answered that the share to which no one had been substituted also belonged to the substitute; their opinion is correct.

Notes

  1. 28.6.39.prcum in suam tutelam uenisset — suam refers to the other grandson who was not under the grandfather's power, i.e., the legatee. This clause indicates the condition of time (dies) when he would escape pupillary guardianship (tutela) and become independent (sui iuris).
  2. 28.6.39.prab eo — Meaning 'charged upon him'. The grandfather (testator) appointed the grandson under his power as sole heir, and laid the obligation of the legacy to the other grandson upon this heir (ab eo legavit).
  3. 28.6.39.2partem, cui nemo erat substitutus, ad substitutum quoque pertinere — cui is a relative pronoun referring back to partem. It shows the jurists' decision that the vacant share of the deceased heir for whom no substitute was appointed accrued (by a principle akin to ius accrescendi) also to the substitute (substitutum) of the other deceased heir who did have a substitute.

Cite this passage

Justinian I, The Digest of Justinian §28.6.39.pr-28.6.39.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.39.pr-28.6.39.2

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