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Justinian I · The Digest of Justinian §34.2.18.pr-34.2.18.2

Trusts for Wives and Foster-Children and Restitution

Passage 5177 of 9271 · Latin

Summary

Scaevola presents legal cases and opinions concerning bequests and trusts (fideicommissa) to a wife and foster-child, addressing ownership disputes, the nature of restitution orders, and the specification of inherited properties.

[SCAEUOLA libro uicesimo secundo digestorum. ] §34.2.18.prQui uxori suae legauerat bonorum suorum decimam et mancipia et species argenti quas expresserat, eidem anulos et uestem reddi ab heredibus petit, quasi propria uxoris fuissent: quaesitum est, si uxoris non fuerint, an praestari ex causa legati deberent.
[SCAEVOLA, in his twenty-second book of the Digests.] man who had bequeathed to his wife a tenth part of his property, slaves, and specific silver vessels which he had described, requested (in his will) that rings and clothing be returned to her by the heirs, as if they had been the wife's own property. The question was asked whether, if they had not been the wife's property, they ought to be delivered on account of the legacy.
respondit legandi animo dedisse ea uideri, nisi contrarium ab herede approbetur. §34.2.18.1Idem testator fidei commissit uxoris, ut quidquid ad eam ex testamento eius peruenisset, alumno communi restitueret: quaesitum est, an etiam eas res, quas proprias uxoris suae fuisse testator sciat eique reddi praecepit, alumno praestare debeat.
He answered that he is deemed to have given them with the intention of bequeathing them, unless the contrary is proved by the heir. same testator bound his wife by a trust to restore to their common foster-child whatever should come to her from his will. The question was asked whether she must deliver to the foster-child even those things which the testator knew to have been his wife's own property and which he ordered to be returned to her.
respondit, si propriae fuissent, non debere, si legato adquirerentur, debere. §34.2.18.2Mulier testamento et postea codicillis multas species uestis argenti, quas uel ipsa se confecisse uel habere significauit, specialiter per fideicommissum reliquit: quaesitum est, an non aliae legatariis cederent, quam quae in hereditate inuentae essent.
He answered that if they had been her own, she was not obliged to do so; but if they were acquired by legacy, she was obliged. woman, by her will and subsequently by codicils, left specifically by trust many articles of clothing and silver, which she indicated that she had either made herself or possessed. The question was asked whether any other things than those found in the inheritance should pass to the legatees.
respondit eas cedere, quae inuentae essent.
He answered that those which were found should pass.

Notes

  1. §34.2.18.prQui uxori suae legauerat... petit — The antecedent (is) of the relative pronoun qui is omitted, making the entire relative clause function as the subject of the main verb petit. This is a common formulaic style in legal texts to introduce a hypothetical person in a case.
  2. §34.2.18.1fidei commissit uxoris — In the phrase fidei commissit uxoris (or fideicommisit uxoris), the genitive uxoris is used instead of the more common dative. It functions to denote that the trust was committed to the 'good faith' or 'responsibility' of the wife.
  3. §34.2.18.1si propriae fuissent, non debere, si legato adquirerentur, debere — A conditional response in indirect speech (Oratio Obliqua). The subject accusative (uxorem) and the active infinitive (praestare) are omitted. It is understood as: if the things had been her own, she was not obliged to deliver them; if they were acquired by legacy, she was obliged.

Cite this passage

Justinian I, The Digest of Justinian §34.2.18.pr-34.2.18.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.2.18.pr-34.2.18.2

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