Humanitext Reader

Justinian I · The Digest of Justinian §29.4.27.pr-29.4.27.2

Pupillary Substitution, Collusion, and the Praetor's Edict

Passage 4541 of 9271 · Latin

Summary

The text discusses how the praetor's edict to enforce legacies applies in various cases of evading a testament in favor of intestate succession, citing cases of pupillary substitution and family collusion.

[IDEM libro sexto responsorum. ] §29.4.27.prMater secundis tabulis impuberi filio substituta locum edicto facit, si omisso testamento legitimam hereditatem filii possideat.
[THE SAME, from the sixth book of Opinions.] A mother substituted by a second will to her impuberate son brings the edict into play if, omitting the testament, she possesses the intestate inheritance of her son.
idem iuris erit et si filio heres data sit et substituta.
The same rule of law will apply even if she was appointed heir to her son and also substituted to him.
§29.4.27.1In sententiam edicti propter legatorum causam frater incidisse non uidebatur, qui filium suum substitutum impuberi testamento fratris non emancipauit, sed ab intestato per eum possidere coepit.
A brother was not deemed to have fallen under the meaning of the edict on account of the legacies, who did not emancipate his own son (who had been substituted to the impuberate child in the testament of the brother), but began to possess through him by intestacy.
§29.4.27.2In eum, qui testamento scriptus heres non fuit, si fraudis consilio cum heredibus scriptis participato legitimam hereditatem solus possideat, actio legatorum ex sententia praetoris dabitur.
Against a person who was not appointed heir in the testament, if, having participated in a fraudulent scheme with the appointed heirs, he alone possesses the intestate inheritance, an action for the legacies will be granted in accordance with the opinion of the praetor.

Notes

  1. §29.4.27.prsecundis tabulis — Meaning "by the second tablets." Pupillary substitution (substitutio pupillaris) was made by a parent drawing up second tablets (secundis tabulis) in addition to their own primary testament (primis tabulis) to designate an heir for their impuberate child in case the child died before reaching puberty.
  2. §29.4.27.1frater ... qui filium suum ... non emancipauit — This section describes a complex family and legal relationship. The "brother" (frater) refers to the deceased's brother (uncle). The uncle did not "emancipate" (emancipauit) his own son, who was substituted to the impuberate cousin in the deceased brother's testament. Since property acquired by a son under paternal power (filius familias) belongs to the paterfamilias (the father), the uncle began to possess the inheritance through his son by intestacy. This passive non-emancipation was not deemed an active fraudulent scheme to evade legacies, and thus did not trigger the edict's penalty.
  3. §29.4.27.2In eum ... si fraudis consilio ... — An exceptional rule stating that even against a third party who was not the appointed heir (heres scriptus) in the testament, if he conspired with the appointed heirs to create a situation of intestacy and possessed the inheritance alone, an action for legacies (actio legatorum) will be granted against him by the discretion of the praetor.

Cite this passage

Justinian I, The Digest of Justinian §29.4.27.pr-29.4.27.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:29.4.27.pr-29.4.27.2

Please note the AI-draft status of the translation and the date accessed.

Translation, notes and summary are AI-generated drafts, revised through reader feedback.