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Justinian I · The Digest of Justinian §29.2.60.pr

Claim for Possession on Intestacy and Acceptance under a Will

Passage 4463 of 9271 · Latin

Summary

The jurists Labeo, Javolenus, and Proculus debate whether an emancipated son who petitions for possession of goods on intestacy, claiming his father was insane, is deemed to have accepted the inheritance under the will, and how this affects the rights of the substituted heir.

[IAUOLENUS libro primo ex posterioribus Labeonis. ] §29.2.60.prFilium emancipatum pater solum heredem instituit et, si is heres non esset, seruum liberum et heredem esse iusserat: filius, tamquam pater demens fuisset, bonorum possessionem ab intestato petit et ita hereditatem possedit.
[JAVOLENUS, in the first book of the Posthumous Works of Labeo.] A father appointed his emancipated son as his sole heir, and had ordered that, if he should not be the heir, a slave should be free and be the heir. The son, on the ground that the father had been insane, petitioned for possession of the goods on intestacy, and thus took possession of the inheritance.
Labeo ait, si probaretur sana mente pater testamentum fecisse, filium ex testamento patri heredem esse.
Labeo says that, if it should be proved that the father had made the will with a sound mind, the son is the heir to the father under the will.
hoc falsum puto: nam filius emancipatus cum hereditatem testamento datam ad se pertinere noluit, continuo ea ad substitutum heredem transit nec potest uideri pro herede gessisse, qui, ut hereditatem omitteret, ex alia parte edicti possessionem bonorum petat.
I think this is incorrect: for since the emancipated son did not wish the inheritance given by the will to belong to him, it immediately passes to the substituted heir, nor can he be deemed to have acted as heir, seeing that, in order to reject the inheritance, he petitions for possession of the goods under another part of the Edict.
PAULUS. Et Proculus Labeonis sententiam improbat et in Iauoleni sententia est.
PAULUS. Proculus also disapproves of Labeo's opinion and agrees with Javolenus.

Notes

  1. §29.2.60.prpro herede gessisse — 'pro herede gerere' (to act as heir) refers to an act by which an heir tacitly expresses their intention to accept the inheritance. Javolenus argues that the son's petition for possession of goods on intestacy cannot be construed as an acceptance of the testamentary inheritance, but rather manifests an intention to reject ('omitteret') it.
  2. §29.2.60.prqui ... petat — The subjunctive present 'petat' in the relative clause introduced by 'qui' is used to denote the character or the reason (subjunctive of characteristic or cause), explaining why such a person who petitions for possession of goods under another part of the Edict cannot be deemed to have acted as heir.

Cite this passage

Justinian I, The Digest of Justinian §29.2.60.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.2.60.pr

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