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Justinian I · The Digest of Justinian §34.5.18.pr-34.5.18.1

Simultaneous Death and Inheritance Eligibility

Passage 5282 of 9271 · Latin

Summary

This chunk discusses the determination of inheritance eligibility among heirs who die simultaneously, and the exclusion of slaves who die at the same time as their master from the estate valuation under the Falcidian law.

[MARCIANUS libro tertio regularum. ] §34.5.18.prSed et in illo quaeritur, si pariter pupillus et qui ei substitutus erat frater necessarius decesserit, an frater fratri exsistat heres an contra: uel si duo inuicem necessarii substituti sunt et una perierint, an heredes exstitisse uideantur: uel alter alteri (hoc est si inuicem) hereditatem rogati fuerint restituere.
[MARCIANUS, from the third book of Rules.] But it is also questioned in this case: if a pupillus and his brother, who had been substituted for him as a necessary heir, have perished together, whether the brother becomes the heir to his brother, or the reverse; or if two persons have been substituted for each other as necessary heirs and have perished together, whether they are deemed to have become heirs; or if one has been requested to restore the inheritance to the other (that is, if they were requested reciprocally).
in quibus casibus si pariter decesserint nec appareat, quis ante spiritum emisit, non uidetur alter alteri superuixisse.
In which cases, if they have perished together and it is not apparent who drew his last breath first, neither is deemed to have survived the other.
§34.5.18.1Sed et circa legem Falcidiam, si dominus cum seruis simul uita functus sit, serui, quasi in bonis eius mortis tempore fuerint, non computantur.
But also concerning the Falcidian law, if a master has departed this life at the same time as his slaves, the slaves are not computed as though they were in his property at the time of his death.

Notes

  1. §34.5.18.prfrater necessarius — The term 'necessarius' ('necessary') typically refers to a slave who is freed and appointed heir by testament (necessarius heres). Here, however, it is used in a specific context of a brother who is designated as a substitute heir in pupillary substitution, functioning adjectivally in apposition with 'frater'.
  2. §34.5.18.prrogati fuerint — The perfect passive of the verb 'rogare' ('to request'), which is a technical term for creating a testamentary trust (fideicommissum). The subject is understood from 'duo' or 'alter alteri', referring to the parties who were mutually requested as fiduciaries. It is in the subjunctive mood, continuing the indirect question introduced by 'an' or as part of the hypothetical conditional clause.
  3. §34.5.18.1quasi in bonis eius mortis tempore fuerint — The conjunction 'quasi' ('as if') introduces a counterfactual comparison and takes the perfect subjunctive 'fuerint'. Since the master and the slaves died at the same time, the slaves were not alive as property ('in bonis') at the precise 'moment of death' ('mortis tempore'); the clause explains that they are not to be calculated 'as though they had been' part of the estate at that moment.

Cite this passage

Justinian I, The Digest of Justinian §34.5.18.pr-34.5.18.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.5.18.pr-34.5.18.1

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