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Justinian I · The Digest of Justinian §35.1.61.pr

Validity of a Legacy to a Wife Pending the Birth of Children

Passage 5392 of 9271 · Latin

Summary

Ulpian discusses a bequest made by a husband to his wife until the time of children, concluding that it is equitable for the birth of a child to be effective for the bequest, whether the birth occurs during the husband's lifetime or after his death.

[ULPIANUS libro octauo ad legem Iuliam et Papiam. ] §35.1.61.prSi uir uxori ad tempus liberorum legauerit, dubitari potest, an de his dumtaxat filiis sensisset testator qui post mortem eius nati fuissent an et de his, qui uiuo eo ab eo suscepti fuissent post testamentum factum, cum manente matrimonio decessisset: uerum aequum est proficere, siue uiuo marito siue post mortem nascatur.
[ULPIANUS in the eighth book on the Lex Iulia et Papia.] If a husband has bequeathed something to his wife until the time of children, it may be doubted whether the testator meant only those children who were born after his death, or also those who had been acknowledged by him during his lifetime after the will was made, when he died while the marriage was still subsisting; but it is equitable that it should be of benefit, whether the child is born during the husband's lifetime or after his death.

Notes

  1. §35.1.61.prad tempus liberorum — The preposition `ad` (until) and the noun `tempus` (time) are combined with the genitive `liberorum` (of children), expressing a time limit 'until the time of [having] children.'
  2. §35.1.61.prsensisset — The verb in the indirect question (`an... an...`). Although the main verb `dubitari potest` is in the present tense, the subjunctive pluperfect is used here according to the sequence of tenses (consecutio temporum) to refer to the prior intention of the testator at the time of making the will.
  3. §35.1.61.prproficere — The present infinitive of `proficio` (to be of use, to benefit, to have effect). It forms the subject clause of the impersonal construction `aequum est`, meaning 'that it [the birth of a child, whether before or after death] should be of benefit' or 'should count in favor' of the legacy.

Cite this passage

Justinian I, The Digest of Justinian §35.1.61.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.61.pr

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