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Justinian I · The Digest of Justinian §35.1.102.pr

Failure of Restitution Trust When Heir Leaves Children

Passage 5433 of 9271 · Latin

Summary

Papinian decides that where a grandfather directed a grandson to restore an inheritance if the grandson died before thirty, but the grandson died young leaving children, the condition of the trust failed based on the presumption of family affection, implying the condition 'if he should die without children'.

[IDEM libro nono responsorum. ] §35.1.102.prCum auus filium ac nepotem ex altero filio heredes iustituisset, a nepote petit, ut, si intra annum trigesimum moreretur, hereditatem patruo suo restitueret: nepos liberis relictis intra actatem supra scriptam uita decessit.
[THE SAME in the ninth book of Responses.] When a grandfather had appointed a son and a grandson by another son as his heirs, he requested of the grandson that, if he should die within his thirtieth year, he should restore the inheritance to his paternal uncle. The grandson, having left children, departed this life within the age written above.
fideicommissi condicionem coniectura pietatis respondi defecisse, quod minus scriptum, quam dictum fuerat, inueniretur.
I answered that, by a presumption of family affection, the condition of the trust had failed, because it was found that less had been written than had been intended.

Notes

  1. §35.1.102.priustituisset — The manuscript reading `iustituisset` is understood to be a scribal error for `instituisset` (had appointed), referring to the grandfather's appointment of his heirs.
  2. §35.1.102.prconiectura pietatis — Meaning 'by a presumption/conjecture of family affection.' It suggests that the grandfather's request for the grandson to restore the property to his uncle if he died before thirty assumed the case of dying without children (si sine liberis); if the grandson had children, it is presumed by natural family affection (pietas) that the grandfather would have intended the inheritance to remain with them.
  3. §35.1.102.prminus scriptum, quam dictum fuerat — Literally, 'less was written than had been spoken (intended).' This is a classical legal expression indicating that due to a lack of words, the implicit condition 'if he should die without children' (si sine liberis) was omitted from the written document but should be understood as implied.

Cite this passage

Justinian I, The Digest of Justinian §35.1.102.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.102.pr

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