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Justinian I · The Digest of Justinian §32.0.103.pr-32.0.103.3

Substitute Heir's Legacy Liability in Indirect Succession

Passage 4927 of 9271 · Latin

Summary

The text discusses whether a substitute heir is obliged to pay legacies when the inheritance reaches a minor through subsequent succession rather than directly, and how the substitute's liability for legacies increases or decreases when possession of goods contrary to the will (under the edict) is granted.

[SCAEUOLA libro singulari quaestionum publice tractatarum. ] §32.0.103.prSi pater exheredato filio substituit heredem extraneum, deinde ille extraneus hunc filium heredem instituit et heres factus intra pubertatem decedat, puto a substituto ei filio omnino legata praestari non debere, quia non directo, sed per successionem ad filium hereditas patris peruenit.
[SCAEVOLA, from his single book of Questions Publicly Discussed.] If a father substituted an outsider heir for his disinherited son, and then that outsider instituted this son as heir, and the son, having become heir, died before puberty, I think that legacies are not owed at all by the person substituted for that son, because the inheritance of the father reached the son not directly, but through succession.
§32.0.103.1Plus ego in fratre, qui, cum heres exstitisset patri, exheredatum fratrem heredem instituit, accepi substitutum eius legatum non debere ac ne quidem si intestato fratri successerit, quia non principaliter, sed per successionem bona fratris ad eum peruenerunt.
I have accepted a further point in the case of a brother who, having stood as heir to his father, instituted his disinherited brother as heir, that his substitute does not owe a legacy, and indeed not even if he succeeded to the intestate brother, because the property of the brother reached him not principally, but through succession.
§32.0.103.2Si filius ex uncia heres institutus sit et ab eo legata data sint, habeat et substitutum, deinde commisso edicto per alium filium accepit partis dimidiae bonorum possessionem: substitutus eius utrum ex uncia legata praestat an uero ex semisse? et uerius est ex semisse sed ex uncia omnibus ex reliquis liberis et parentibus.
If a son was instituted heir for one-twelfth and legacies were given by him, and he also had a substitute, and then, the edict having been put into effect by another son, he received possession of goods of a half part: does his substitute pay the legacies from the one-twelfth or indeed from the half? And it is more correct that it is from the half, but from the one-twelfth for all the remaining children and parents.
§32.0.103.3Contra quoque si ex dodrante institutus commisso edicto semissem acceperit bonorum possessionem, ex semisse tantum legata substitutus debebit: quo modo enim augentur, ubi amplius est in bonorum possessione, sic et ubi minus est, deducitur.
Conversely also, if one instituted for nine-twelfths, the edict having been put into effect, received possession of goods of a half, the substitute will owe the legacies only from the half: for in the same way as they are increased when there is more in the possession of goods, so also when there is less, a deduction is made.

Notes

  1. §32.0.103.prsubstituto ei filio — ei filio is a dative depending on the substantival/participial substituto (which forms the ablative of agent with a), meaning 'the person substituted for that son'. This refers to pupillary substitution.
  2. §32.0.103.1Plus ego ... accepi — The expression plus accipere is a legal idiom meaning to accept or extend a legal principle or decision a step further. Here it indicates the approval of extending the same principle to the case of a brother who instituted his disinherited brother as heir.
  3. §32.0.103.2commisso edicto — An ablative absolute construction consisting of the noun edictum and the verb committere (here meaning 'to put into effect' or 'to activate'). It refers to the fact that another child, omitted or disinherited, has activated the praetorian edict granting possession of goods contrary to the will (bonorum possessio contra tabulas).
  4. §32.0.103.2omnibus ex reliquis liberis et parentibus — Dative case omnibus accompanied by the ablative phrase ex reliquis liberis et parentibus. It indicates that even when bonorum possessio contra tabulas is granted and the share increases, legacies left to certain protected relatives (children and parents) remain fixed at the original share designated in the will (one-twelfth).

Cite this passage

Justinian I, The Digest of Justinian §32.0.103.pr-32.0.103.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:32.0.103.pr-32.0.103.3

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