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Justinian I · The Digest of Justinian §34.4.22.pr

Enmity Toward a Legatee and the Plea of Fraud

Passage 5254 of 9271 · Latin

Summary

Explains that if a testator, having conceived a grave enmity against a partial heir who was also a legatee, attempted to make a new will but died before completing it, the heir's right to hereditary actions is maintained, but a claim for the legacy will be barred by the plea of fraud (exceptio doli).

[PAPINIANUS libro sexto responsorum. ] §34.4.22.prEx parte heres institutus etiam legatum acceperat: eum testator inimicitiis grauissimis persecutus, cum testamentum aliud facere instituisset neque perficere potuisset, praeteriit.
[PAPINIANUS in the sixth book of Responses.] A person instituted as heir for a share had also received a legacy: the testator, having pursued him with the gravest enmity, when he had resolved to make another will but had not been able to complete it, passed him over.
hereditariae quidem actiones ei non denegabuntur, sed legatum si petat, exceptione doli mali submouebitur.
Indeed, hereditary actions will not be denied to him, but if he should sue for the legacy, he will be barred by the plea of fraud.

Notes

  1. §34.4.22.prpersecutus — The perfect participle of the deponent verb persequor, with an active meaning ('having pursued' or 'having conceived enmity against'), modifying the subject testator. It indicates an ongoing state that preceded or accompanied the attempt to make a new will.
  2. §34.4.22.prexceptione doli mali — Aptly expressed in the ablative of means, referring to the 'plea of fraud' (exceptio doli mali). Since the new will was incomplete, the old will remains legally valid, and thus hereditary actions are not denied; however, the claim for the legacy is barred by this plea on the grounds of bad faith, as it contradicts the testator's clear intention of revocation.

Cite this passage

Justinian I, The Digest of Justinian §34.4.22.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.4.22.pr

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