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Justinian I · The Digest of Justinian §34.9.2.pr-34.9.2.3

Forfeiture of Inheritance to the Treasury for Unworthiness

Passage 5307 of 9271 · Latin

Summary

It discusses cases where an inheritance is taken away as from an unworthy heir and belongs to the treasury, such as an emancipated son claiming possession contrary to the will, a person contracting an illegal marriage in his province of office, or someone donating the property of a living relative without their knowledge.

[IDEM libro undecimo institutionum. ] §34.9.2.prAufertur hereditas ex asse et ad fiscum pertinet, si emancipatus filius contra tabulas bonorum possessionem patris ut praeteritus petierit et ex substitutione impuberis adierit hereditatem.
[THE SAME AUTHOR, in the eleventh book of Institutions.] The inheritance is taken away in its entirety and belongs to the treasury, if an emancipated son has claimed possession of his father's goods contrary to the will as one passed over, and has entered upon the inheritance under the pupillary substitution of an impuber.
§34.9.2.1Item si quis contra mandata duxerit uxorem ex ea prouincia, in qua officium aliquid gerit, quod ei ex testamento uxoris adquisitum est diui Seuerus et Antoninus rescripserunt retinere eum non posse, tamquam si tutor pupillam contra decretum amplissimi ordinis in domum suam duxisset.
Likewise, if anyone, contrary to the mandates, has married a wife from that province in which he holds some office, the deified Severus and Antoninus wrote in a rescript that he cannot retain what was acquired by him under the testament of his wife, just as if a tutor had taken his female ward into his home as a wife contrary to the decree of the most illustrious order.
utroque ergo casu etsi ex asse heres institutus adierit hereditatem, fisco locus fit: nam quasi indigno ei aufertur hereditas.
Therefore, in both cases, even if the person instituted as heir to the entire estate has entered upon the inheritance, a place is made for the treasury; for the inheritance is taken away from him as if from an unworthy person.
§34.9.2.2Per contrarium autem ducta tam ab eo, qui officium in prouincia gerebat, quam a tutore illicite magis est, ut dicatur capere illam ex testamento nec quasi indignam esse repellendam.
On the other hand, however, regarding a wife unlawfully married either by one who held office in a province or by a tutor, it is more correct to say that she takes under the testament and is not to be excluded as if unworthy.
§34.9.2.3Idem erit, si quis uiui ignorantis bona, uel partem bonorum alicuius cognati donauerit: nam quasi indigno aufertur.
The same will hold true if anyone has made a donation of the goods, or a part of the goods, of any relative who is alive and ignorant of it; for it is taken away from him as if from an unworthy person.

Notes

  1. 34.9.2.prcontra tabulas bonorum possessionem — 'Possession of goods contrary to the will.' This refers to a praetorian law institution (bonorum possessio contra tabulas) claimed by close relatives who were passed over (praeteritus) in the decedent's testament, on the assumption that the testament is invalid or modified.
  2. 34.9.2.prex substitutione impuberis — 'Under the pupillary substitution of an impuber.' It refers to the pupillary substitution (substitutio pupillaris) made by a father for his minor child. If the child dies before reaching puberty (impubes), the substitute heir designated by the father succeeds to the inheritance.
  3. 34.9.2.1quod ei ex testamento uxoris adquisitum est — The clause containing the relative pronoun 'quod' functions as an appositive anticipation of the direct object of the infinitive 'retinere' (or the subject of the infinitive clause) in the subsequent indirect speech (retinere eum non posse). The deified Severus and Antoninus replied that 'as for what was acquired by him under his wife's testament, he cannot retain it.'
  4. 34.9.2.1amplissimi ordinis — 'The most illustrious order.' An official and complimentary term used to refer to the 'senate' (senatus) during the Roman Empire.
  5. 34.9.2.2ducta — Derived from 'duxerit uxorem' or 'duxisset' in the preceding section, 'ducta' is the feminine singular of the perfect passive participle, modifying or standing for the noun 'uxor' (wife), meaning 'the woman who was married.' It functions as the subject of the infinitive clauses 'capere' and 'repellendam [esse]'.
  6. 34.9.2.3uiui ignorantis — Genitive forms modifying the subsequent 'cognati.' It means 'of a relative who is still alive and ignorant [of the donation],' highlighting the wrongfulness of donating someone's property without their consent while they are still alive.

Cite this passage

Justinian I, The Digest of Justinian §34.9.2.pr-34.9.2.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:34.9.2.pr-34.9.2.3

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