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Justinian I · The Digest of Justinian §29.1.25.pr

Validity and Ratification of a Will Made before Service

Passage 4384 of 9271 · Latin

Summary

In response to whether a testament made before becoming a tribune is valid as a soldier's testament, the reply states that imperial constitutions only confirm testaments made by those who are already soldiers, unless the testator later expressed a desire for the prior testament to be valid.

[MARCELLUS libro singulari responsorum. ] §29.1.25.prTitius priusquam tribunus legionis factus esset, testamentum fecit et postea cinctus manente eodem defunctus est: quaero, an militis testamentum uideatur esse.
[MARCELLUS, in his single book of Responses.] Titius, before he was made a tribune of a legion, made a testament, and afterwards having been girded, while remaining in the same status, he died: I ask whether it seems to be a testament of a soldier.
Marcellus respondit: testamentum quod ante tribunatum fecisset, nisi postea ab eo factum dictum esse probaretur quod ualere uellet, ad commune ius pertinet: constitutionibus enim principum non militum testamenta, sed quae a militibus facta sunt confirmantur: sed plane fecisse testamentum eum interpretandum est, qui se uelle testamentum quod ante fecerat ualere aliquo modo declarauit.
Marcellus replied: a testament which he had made before his tribunate belongs to the common law, unless it is proved that it was afterwards done or said by him that he wished it to be valid: for by the constitutions of the emperors, it is not the testaments of [those who are now] soldiers that are confirmed, but those which were made by soldiers [while they were such]: but clearly, he must be interpreted to have made a testament, who has declared in some way that he wishes the testament which he had made before to be valid.

Notes

  1. §29.1.25.prcinctus — 'cinctus' literally means 'girded', but here it metaphorically refers to putting on the military belt (cingulum), thus meaning 'entered into military service' or 'became a soldier'.
  2. §29.1.25.prmanente eodem — Ablative absolute. The omitted noun is understood as 'statu' (status) or 'tribunatu' (tribunate), indicating that Titius died while remaining in that same military status.
  3. §29.1.25.prnisi postea ab eo factum dictum esse probaretur quod ualere uellet — 'factum dictum esse' functions as passive infinitives. The clause 'quod ualere uellet' (what he wished to be valid, referring to the testament) serves as the subject. It states that the prior testament remains under common law unless some subsequent act or statement by him proves his intention to make it valid.
  4. §29.1.25.prnon militum testamenta, sed quae a militibus facta sunt — This contrasts the genitive 'militum testamenta' (simply 'testaments of [those who are now] soldiers') with the relative clause 'quae a militibus facta sunt' ('those which were made by [them as] soldiers'), emphasizing that the privilege of military testaments applies only to testaments drafted while actually serving.

Cite this passage

Justinian I, The Digest of Justinian §29.1.25.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.1.25.pr

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