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Justinian I · The Digest of Justinian §29.1.15.pr-29.1.15.6

Revocation and Revival of Military Wills and Restrictions on Heirs

Passage 4374 of 9271 · Latin

Summary

This section discusses restrictions on a soldier appointing necessary heirs to defraud creditors, the revocation and revival of military wills, the validity of pre-service wills, penalties for those who write themselves into a soldier's will, conditional or temporary inheritances, wills for sons, and limits on applying for possession of goods.

[ULPIANUS libro quadragesimo quinto ad edictum. ] §29.1.15.prIn fraudem plane creditorum nec miles amplius quam unum necessarium facere poterit.
[ULPIANUS, in his forty-fifth book on the Edict.] Plainly, to the defraud of creditors, not even a soldier can appoint more than one necessary heir.
§29.1.15.1Sicut autem hereditatem miles nuda uoluntate dare potest, ita et adimere potest.
But just as a soldier can grant an inheritance by a mere expression of will, so too can he take it away.
denique si cancellauerit testamentum suum uel inciderit, nullius erit momenti: si tamen testamentum cancellauerit et mox ualere uoluerit, ualebit ex suprema uoluntate.
Consequently, if he should cancel or cut his will, it will be of no effect. If, however, he should cancel his will and soon after wish it to be valid, it will be valid in accordance with his last will.
et ideo cum miles induxisset testamentum suum, mox anulo suo signasset, qui super ea re cogniturus erit considerabit, quo proposito id fecerit: nam si mutatae uoluntatis eum paenituisse probabitur, renouatum testamentum intellegetur: quod si ideo, ne ea quae scripta fuerant legi possint, causa irriti facti iudicii potior existimabitur.
Therefore, when a soldier has crossed out his will and soon after sealed it with his ring, the person who is to investigate the matter will consider with what purpose he did so. For if it is proved that he regretted his change of mind, the will will be understood to have been renewed. But if he did so in order that what had been written might not be read, the reason for having made the disposition void will be deemed more powerful.
§29.1.15.2Testamentum ante militiam factum a milite, si in militia decesserit, iure militari ualere, si militis uoluntas contraria non sit, diuus Pius rescripsit.
The deified Pius wrote in a rescript that a will made by a soldier before his military service is valid under military law if he died during his service, provided there is no contrary intention of the soldier.
§29.1.15.3Si quis se scribat heredem in testamento militis, non remittitur ei senatus consulti poena.
If anyone writes himself down as heir in the will of a soldier, the penalty of the senate decree is not remitted to him.
Miles et §29.1.15.4ad tempus heredem facere potest et alium post tempus uel ex condicione uel in condicionem.
A soldier can also appoint an heir for a limited time, and another after that time, or from a certain condition, or up to a certain condition.
§29.1.15.5Item tam sibi quam filio iure militari testamentum facere potest: et soli filio, tametsi sibi non fecerit: quod testamentum ualebit, si forte pater uel in militia uel intra annum militiae decessit.
Likewise, he can make a will under military law both for himself and for his son, and for his son alone, even if he has not made one for himself; and this will will be valid if, perchance, the father died either during his military service or within a year of his military service.
§29.1.15.6Bonorum possessionem ultra tempora edicto determinata nec militis posse adgnosci Papinianus libro quarto decimo quaestionum scribit, quia generalis est ista determinatio.
Papinian writes in the fourteenth book of his Questions that the possession of goods cannot be claimed beyond the times determined by the Edict, not even by a soldier, because that determination is general.

Notes

  1. 29.1.15.prnecessarium — The neuter singular of the adjective necessarius is used substantively to refer to a 'necessary heir' (necessarius heres), i.e., a slave who is manumitted and appointed heir in an insolvent estate and cannot reject the inheritance.
  2. 29.1.15.1eum paenituisse — This is the construction of the impersonal verb paenitet, which takes the accusative of the person feeling regret (eum) and the genitive of the cause of regret (mutatae uoluntatis). The entire phrase forms an accusative with infinitive clause functioning as the subject of the passive verb probabitur.
  3. 29.1.15.1causa irriti facti iudicii — Here iudicium (in the sense of 'testamentary disposition' or 'will') is modified by the genitive of the perfect passive participle facti and the adjective irriti, forming a gerundive-like construction meaning 'the cause of the disposition having been made void'.
  4. 29.1.15.5soli filio — The predicate 'testamentum facere potest' (he can make a will) is omitted by ellipsis from the preceding clause and must be supplied here to yield the meaning 'he can make a will for his son alone'.

Cite this passage

Justinian I, The Digest of Justinian §29.1.15.pr-29.1.15.6. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.1.15.pr-29.1.15.6

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