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Justinian I · The Digest of Justinian §29.1.39.pr

Lex Cornelia and Captive Soldier Sons-in-Power

Passage 4398 of 9271 · Latin

Summary

The text discusses the application of the Lex Cornelia to the military will of a son-in-power who dies in enemy captivity, and why his father's will is not broken by the subsequent emergence of a self-successor.

[IDEM libro nono quaestionum. ] §29.1.39.prSi filius familias miles captus apud hostes decesserit, dicemus legem Corneliam etiam ad eius testamentum pertinere.
[THE SAME, in his ninth book of Questions.] If a son-in-power who is a soldier should die after being captured by the enemy, we shall say that the Lex Cornelia also applies to his will.
sed quaeramus, si pater eius prius in ciuitate decesserit relicto nepote ex filio, an similiter testamentum patris rumpatur.
But let us ask, if his father should die beforehand in the state, leaving a grandson by that son, whether the father's will is likewise broken.
et dicendum est non rumpi testamentum, quia ex eo tempore, quo captus est, uidetur decessisse.
And it must be said that the will is not broken, because he is deemed to have died from the time when he was captured.

Notes

  1. §29.1.39.prlegem Corneliam — The Lex Cornelia (specifically the Lex Cornelia de testamentis of c. 81 BC) established a legal fiction that if a Roman citizen died in enemy captivity, they were deemed to have died at the moment of capture (while still free), preserving the validity of their will. Here, it is affirmed that this fiction also applies to a son-in-power (filius familias) who had made a military will concerning his quasi-independent camp property (castrense peculium).
  2. §29.1.39.prnon rumpi testamentum — While a will is normally broken (ruptum) if a new self-successor (suus heres) emerges after its creation, this explains why it is not broken (non rumpi) in this case. When the son is captured, by the fiction of the Lex Cornelia, he is deemed to have died at the moment of capture. Therefore, at the subsequent death of the father, the grandson was already a self-successor, and no new heir is deemed to have emerged (agnatio sui heredis) at the time of the father's death, leaving the will valid.

Cite this passage

Justinian I, The Digest of Justinian §29.1.39.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.1.39.pr

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