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Justinian I · The Digest of Justinian §28.6.5.pr

Proportional Succession of Substitutes to Vacant Shares

Passage 4277 of 9271 · Latin

Summary

Gaius explains that when heirs are substituted for a failing co-heir in general terms, they succeed to the vacancy in proportion to their respective shares, regardless of whether those shares were acquired by the original institution or by operation of law.

[GAIUS libro tertio ad legem Iuliam et Papiam. ] §28.6.5.prSi in testamento heredes scripti ita alicui substituti fuerint, ut, si is heres non esset, quisquis sibi heres esset is in parte quoque deficientis esset heres: pro qua parte quisque heres exstitisset, pro ea parte eum in portione quoque deficientis uocari placet neque interesse, iure institutionis quisque ex maiore parte heres factus esset an quod per legem alteram partem alicuius uindicasset.
[GAIUS in the third book on the Lex Iulia et Papia.] If in a will the instituted heirs have been substituted for someone in such a manner that, "if he should not be heir, whoever should be an heir to me, he also should be heir to the share of the one failing": it is held that each is called to the share of the one failing in that same proportion in which each stood as heir, and that it makes no difference whether each was made heir to a larger share by the right of institution, or because he had claimed another's share by law.

Notes

  1. §28.6.5.prsibi — The indirect reflexive pronoun `sibi` refers to the testator (the maker of the will) rather than the grammatical subject of the clause (`heredes scripti`). It represents a shift into indirect speech of what would have been the testator's own words, "quisquis mihi heres erit" ("whoever shall be my heir").
  2. §28.6.5.prquod per legem alteram partem alicuius uindicasset — While contrasted with the ablative phrase of cause/manner `iure institutionis` ("by the right of institution"), the `quod` clause (with the subjunctive `uindicasset`) functions as a causal clause ("because he had claimed..."). This refers to an increase in one's share acquired under the Lex Iulia et Papia (caducary laws) by legally claiming a share that lapsed from another.

Cite this passage

Justinian I, The Digest of Justinian §28.6.5.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:28.6.5.pr

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