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Justinian I · The Digest of Justinian §35.1.93.pr

Trust to Allow Inheritance Upon Requested Emancipation

Passage 5424 of 9271 · Latin

Summary

In a case where a mother (grandmother) appointed her granddaughters as co-heirs without condition and requested her son to emancipate them, it was held that the son was bound by a trust to allow them to take the inheritance once they became sui iuris, and that his obligation remained unaffected even if he acquired their portion by the right of substitution.

[PAPINIANUS libro octauo responsorum. ] §35.1.93.prMater filio suo coheredes sine ulla condicione filias ipsius dedit ac petit, ut filias suas emanciparet, ita ut curatores a praetore acciperent.
[PAPINIANUS libro octauo responsorum.] A mother gave to her son, without any condition, his own daughters as co-heirs, and requested that he should emancipate his daughters in such a way that they would receive curators from the praetor.
filii uideri fidei commississe placuit, ut eas sui iuris constitutas ad hereditatem auiae peruenire pateretur, nec ad rem pertinere, si portionem filiarum iure substitutionis quaesisset.
It was held that the son should be considered to have been charged with a trust, namely, to allow them, once they became sui iuris, to reach the inheritance of their grandmother; and that it was of no consequence if he should have acquired the portion of the daughters by the right of substitution.

Notes

  1. §35.1.93.prfilii uideri fidei commississe — The forms `filii` (genitive or nominative plural) and `fidei commississe` (active perfect infinitive) in the manuscripts present grammatical difficulties. In classical jurisprudential texts, this is conventionally interpreted as equivalent to `filium uideri fidei commissum esse` ("that the son should be deemed to have been charged with a trust"). It functions as an accusative and infinitive (A.c.I.) construction subject to `placuit`, indicating that the father (the son) is bound by the trust desired by the grandmother to emancipate his daughters and allow them to take the inheritance.
  2. §35.1.93.preas sui iuris constitutas ad hereditatem auiae peruenire pateretur — The structure within the `ut` clause (the specific content of the trust). The perfect participle `constitutas` modifies the accusative pronoun `eas` (the daughters), expressing the prerequisite circumstance: "once they have been established as sui iuris (independent)." The verb `pateretur` (imperfect subjunctive, whose subject is the father) means "to allow / not to prevent," establishing the passive and active duty of the father not to block his daughters' acquisition of the estate by exercising his paternal power.
  3. §35.1.93.prsi portionem filiarum iure substitutionis quaesisset — The verb `quaesisset` in the conditional clause `si` is in the pluperfect subjunctive, here expressing a concessive hypothesis: "even if he should have acquired (by the right of substitution)." The phrase `iure substitutionis` (by the right of substitution) refers to a situation where the daughters' share of the inheritance would legally devolve to the father based on a substitution set by the testatrix (the grandmother). The clause asserts that even if such legal devolution occurred, it does not exempt the father from the obligation to fulfill the trust (i.e., allowing the daughters to receive the inheritance).

Cite this passage

Justinian I, The Digest of Justinian §35.1.93.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.1.93.pr

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