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Justinian I · The Digest of Justinian §32.0.22.pr-32.0.22.2

Priority of the Last Will and Trusts by Condemned Soldiers

Passage 4843 of 9271 · Latin

Summary

This section explains the priority of the last will when there are contradictory provisions in a testament, the power of a soldier condemned to death to make a will or leave a trust, and the risk of loss of a slave left by trust before default.

[HERMOGENIANUS libro quarto iuris epitomarum. ] §32.0.22.prSi quis in principio testamenti adscripserit: 'cui bis legauero, semel deberi uolo', postea eodem testamento uel codicillis sciens saepe eidem legauerit, suprema uoluntas potior habetur: nemo enim eam sibi potest legem dicere, ut a priore ei recedere non liceat.
[HERMOGENIANUS from the fourth book of Epitomes of Law.] If anyone should have written at the beginning of a will: 'To whomsoever I shall have bequeathed twice, I wish only once to be owed,' and afterwards in the same will or codicils, knowingly, should have frequently bequeathed to the same person, the last will is held to be more powerful; for no one can dictate such a rule to himself that it is not permitted for him to depart from a prior one.
sed hoc ita locum habebit, si specialiter dixerit prioris uoluntatis sibi paenituisse et uoluisse, ut legatarius plura legata accipiat.
But this will take place only if he has specifically stated that he repented of his prior will and wished that the legatee should receive multiple legacy.
§32.0.22.1Miles in eum ex militari delicto capitali dicta sententia, permittente eo in ipsa sententia qui damnauit, sicut testamenti faciendi ita fideicommissi relinquendi potestatem consequitur.
A soldier, when sentence has been pronounced against him for a capital military offense, if he who condemned him permits it in the sentence itself, obtains the power of leaving a trust just as he does of making a will.
§32.0.22.2Mortis damnum per fideicommissum serui relicti, antequam mora fiat, fideicommissarius solus patitur, licet alienus relinquatur.
The loss from the death of a slave left by trust, before default occurs, is borne by the beneficiary of the trust alone, even if a slave belonging to another is left.

Notes

  1. §32.0.22.pra priore — A noun such as uoluntate (will), scriptura (writing), or lege (law/rule, referring back to legem) is understood after a priore. It refers to departing from a provision or intention previously established by oneself.
  2. §32.0.22.prprioris uoluntatis sibi paenituisse — The impersonal verb paenitet usually takes an accusative for the person feeling the emotion in classical Latin (e.g., me paenitet), but here the dative sibi is used. This is a usage found in Late and Vulgar Latin, or it may be influenced by the subject of the following uoluisse.
  3. §32.0.22.1dicta sententia — An ablative absolute (dicta sententia), meaning 'when sentence has been pronounced.' Although 'in eum' (against him) refers to the soldier (the subject 'Miles') who is the object of the sentence, the pronoun 'in eum' is used instead of the reflexive 'in se'.
  4. §32.0.22.2licet alienus relinquatur — The conjunction licet introduces a concession ('although', 'even if') with the subjunctive. alienus (belonging to another) is nominative singular masculine, with seruus (slave) understood as the subject, referring to a case where a slave owned by a third party is the object of the trust.

Cite this passage

Justinian I, The Digest of Justinian §32.0.22.pr-32.0.22.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:32.0.22.pr-32.0.22.2

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