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Justinian I · The Digest of Justinian §30.1.17.pr-30.1.17.2

Conditional Legacies to Daughters and Prelegacies to Co-Heirs

Passage 4613 of 9271 · Latin

Summary

This chunk discusses the inclusion of posthumous daughters, the treatment of multiple births under conditional legacies to a daughter, and the enforcement of legacies to a co-heir (prelegacy) even in the case of their abstention from the inheritance.

[ULPIANUS libro quinto decimo ad Sabinum. ] §30.1.17.prQui filiabus legauit, si mentionem aliqua parte testamenti postumac fecit, uidetur in filiarum legato et de postuma sensisse.
[ULPIANUS, Book 15 on Sabinus.] One who has bequeathed to his daughters, if he has made mention of a posthumous daughter in any part of the testament, is deemed to have intended also concerning the posthumous daughter in the legacy to the daughters.
§30.1.17.1Si quis ita legauerit: 'si qua filia mihi genitur, ei heres meus centum dato', pluribus natis uidetur singulis tantundem legasse: quod ita accipiendum est, nisi euidens sit contraria sententia testatoris.
If anyone has bequeathed thus: 'If any daughter is born to me, let my heir give her one hundred,' if several are born, he is deemed to have bequeathed the same amount to each of them; which is to be so accepted, unless the contrary intention of the testator is evident.
§30.1.17.2Si uni ex heredibus fuerit legatum, hoc deberi ei officio iudicis familiae herciscundae manifestum est: sed et si abstinuerit se hereditate, consequi eum hoc legatum posse constat
If a legacy has been made to one of the heirs, it is clear that this is owed to him by the office of the judge for dividing the inheritance; but even if he has abstained from the inheritance, it is established that he can obtain this legacy.

Notes

  1. 30.1.17.prpostumac — A scribal error in the manuscripts, usually read as `postumae` (genitive of the feminine noun postuma, 'a posthumous daughter'). `mentionem ... postumae` means 'mention of a posthumous daughter'.
  2. 30.1.17.1pluribus natis — An ablative absolute construction, with the feminine noun `filiabus` understood from context, meaning 'if several [daughters] are born'.
  3. 30.1.17.2officio iudicis familiae herciscundae — Meaning 'by the office of the judge for dividing the inheritance.' A legacy bequeathed to one of the co-heirs (prelegacy) is claimed not through the ordinary action for a legacy, but through the discretionary office of the judge (officium iudicis) in the action for partition of an inheritance (actio familiae herciscundae).
  4. 30.1.17.2abstinuerit se hereditate — The phrase `se abstinere` with the ablative of separation `hereditate` is a legal idiom meaning 'to abstain from the inheritance' (to decline or waive the inheritance).

Cite this passage

Justinian I, The Digest of Justinian §30.1.17.pr-30.1.17.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:30.1.17.pr-30.1.17.2

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