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Justinian I · The Digest of Justinian §30.1.32.pr-30.1.32.2

Repetition of Legacies from Substitutes and Uncertain Bequests

Passage 4628 of 9271 · Latin

Summary

This text discusses the conditionality of a legacy repeated from a substitute heir upon the death of an impuber primary heir, the method of selection when a slave of a common name is bequeathed, and the validity of a legacy left to a subdivision of a city for public benefit.

[ULPIANUS libro uicesimo ad Sabinum. ] §30.1.32.prSi quis a filio pupillo herede instituto, cum is in tutelam suam uenisset, pecuniam legauerit et a substituto herede legata repetierat, impubere filio mortuo secundus heres legatum non debebit.
[ULPIANUS, Book 20 of Commentary on Sabinus.] If anyone has bequeathed money from a pupillary son instituted as heir, to be paid when he should have come into his own guardianship, and had repeated the legacies from the substituted heir, then, if the impuber son dies, the second heir will not owe the legacy.
quod ita uerum esse tam Sextus quam Pomponius putant, si repetitio legatorum ad eum modum concepta sit ueluti: 'quae a filio meo legaui quaeque eum dare iussi, si mihi heres esset, id heres meus isdem diebus dato': sed si ita repetita fuerint: 'quae a filio meo legaui, heres meus dato', pure repetita uidebuntur legata et dumtaxat demonstratio eorum facta: igitur et hoc ipsum legatum de quo quaeritur praesens debebitur.
Both Sextus and Pomponius think this is true only if the repetition of the legacies is drafted in such a manner as: "What things I have bequeathed from my son and what things I ordered him to give, if he should be my heir, let my heir give that on the same days"; but if they were repeated thus: "What things I have bequeathed from my son, let my heir give," the legacies will be seen as repeated unconditionally, and merely a description of them made; therefore, even this very legacy in question will be owed immediately.
§30.1.32.1Si quis plures Stichos habens Stichum legauerit, si non apparet, de quo Sticho sensit, quem elegerit debet praestare.
If anyone owning several slaves named Stichus has bequeathed "Stichus," and it is not apparent which Stichus he meant, he must provide the one he has chosen.
§30.1.32.2Si parti ciuitatis aliquid sit relictum, quod ad ornatum uel conpendium rei publicae spectat, sine dubio debebitur.
If something is left to a part of a city, which looks to the decoration or the benefit of the municipality, it will without doubt be owed.

Notes

  1. 30.1.32.prcum is in tutelam suam uenisset — A temporal clause with the pluperfect subjunctive uenisset. In Roman legal terminology, "to come into one's own tutela" (in tutelam suam uenire) means to reach the age of puberty/majority and thus cease to be under the pupillary guardianship (tutela), becoming capable of managing one's own affairs. Here it acts as a condition for the legacy.
  2. 30.1.32.1quem elegerit debet praestare — The verb elegerit is either perfect subjunctive or future perfect indicative. The implied subject is the debtor (the heir, heres). In cases of ambiguity involving multiple objects with the same name (analogous to legatum generis), the right of selection (electio) belongs to the debtor/heir unless the testator specified otherwise.
  3. 30.1.32.2parti ciuitatis — Dative case. Under Roman law, legacies to uncertain persons (personae incertae) were generally void; however, a legacy to a subdivision of a city (such as a ward or district) was recognized as an exception and held valid, provided it was destined for public decoration or utility (ornatum uel conpendium).

Cite this passage

Justinian I, The Digest of Justinian §30.1.32.pr-30.1.32.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:30.1.32.pr-30.1.32.2

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