Humanitext Reader

Justinian I · The Digest of Justinian §34.4.28.pr

Conditional Legacy Followed by an Unconditional Trust

Passage 5260 of 9271 · Latin

Summary

Discusses the issue of whether the later provision of a will prevails when a specific thing is first bequeathed with an obligation to restore it to a third party, and subsequently left to the same person as a trust without such an obligation.

[UALENS libro quinto fideicommissorum. ] §34.4.28.prSi tibi certam rem legauero et rogauero te, ut eam Titio restitueres, deinde eandem rem tibi fideicommisero nec rogauero te, ut alii eam praestares, quaeritur, an in tua potestate sit ex causa fideicommissi eligere, ut fideicommissum non praestes.
[VALENS in the fifth book on Trusts.] If I should bequeath a certain thing to you and ask you to restore it to Titius, and then I should leave the same thing to you as a trust and not ask you to deliver it to anyone else, the question arises whether it is within your power to choose, on the ground of the trust, not to perform the trust.
et magis posteriorem scripturam testamenti placuit spectari.
And the opinion rather prevailed that the later writing of the will should be regarded.

Notes

  1. §34.4.28.prut fideicommissum non praestes — "not to perform the trust." Here, fideicommissum refers to the first trust mentioned in the preceding clause, which carries the obligation to restore the thing to Titius (restitueres).
  2. §34.4.28.prposteriorem scripturam — "the later writing." Refers to the physical sequence of provisions within the same testament. It indicates the principle of testamentary interpretation in Roman law that when there are conflicting dispositions of the same object, the later provision is construed as implicitly revoking or modifying the earlier one.

Cite this passage

Justinian I, The Digest of Justinian §34.4.28.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.4.28.pr

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