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Justinian I · The Digest of Justinian §35.2.18.pr-35.2.18.1

Trust of Military Peculium and Deduction of the Fourth

Passage 5463 of 9271 · Latin

Summary

The text discusses whether a father charged with a trust-bequest of a military peculium can claim the Falcidian deduction despite the lack of a formal inheritance, and argues for the analogous application of the Trebellian senatusconsultum.

[PAULUS libro undecimo quaestionum. ] §35.2.18.prFilius familias qui militauerat decedens patris sui fidei commisit codicillis, ut peculium suum castrense Titio post mortem restitueret: quaerebatur, an ut heres quartam deducere possit.
[PAULUS, from his eleventh book of Questions.] A son-in-power who had served in the military, upon his death, charged the faith of his father by a codicil to restore his military peculium to Titius after his death. The question was raised whether the father could deduct a fourth part as an heir.
dixi legem Falcidiam inductam esse a diuo Pio etiam in intestatorum successionibus propter fideicommissa: sed in proposito nec hereditatem esse, quamuis placeret mihi extraneo herede instituto fieri hereditatem aditione eius: nam cum apud patrem remanet, ius pristinum durat et peculium est.
I said that the Falcidian law had been introduced by the Divine Pius even in intestate successions on account of trust-bequests; but in the present case there is no inheritance, although I favored the view that if an outside heir was instituted, an inheritance is created by his acceptance. For when the peculium remains with the father, the former right continues and it is a peculium.
nec huic contrarium est, quod in testamento eius qui apud hostes decessit exercetur Falcidia: nam fictio legis Corneliae et hereditatem et heredem facit.
Nor is it contrary to this that the Falcidian law is applied in the testament of one who died in enemy hands; for the fiction of the Cornelian Law creates both an inheritance and an heir.
sed me non dubitare, quin debeat id quoque indulgeri legis beneficium, siquidem quasi patris familiae bona restituere cogitur et heres scriptus omissa ex testamento aditione exemplo edicti legatorum nomine conuenietur.
But I said that I did not doubt that this benefit of the law also ought to be granted, since he is compelled to restore the property as if of a head of a household, and, like an instituted heir who has neglected to accept under the testament, he will be sued under the title of legacies according to the example of the Edict.
§35.2.18.1His consequens erit, ut, si ex fructibus medio tempore quartam et quartae fructus habuerit pater, etiam Trebellianum senatus consultum inducamus et utiles actiones exerceri possint fiatque hereditas post restitutionem.
The consequence of this will be that, if in the meantime the father has kept a fourth part from the fruits and the fruits of that fourth part, we should also apply the Trebellian senatusconsultum, so that beneficial actions can be exercised and an inheritance is created after the restitution.

Notes

  1. §35.2.18.prnec hereditatem esse, quamuis placeret mihi extraneo herede instituto fieri hereditatem aditione eius: — This indicates Paulus's doctrinal contrast regarding the military peculium (peculium castrense) under a trust: if it remains with the father, no formal "inheritance" (hereditas) is created because paternal power continues, whereas if an outside heir (extraneus) is appointed and makes an entry (aditio), an inheritance is indeed created.
  2. §35.2.18.prsed me non dubitare... — An accusative-with-infinitive construction functioning as part of the indirect speech introduced by `dixi`. Paulus judges that, despite the strict absence of an inheritance, the benefit (beneficium) of the Falcidian deduction should be granted to the father on grounds of equity.
  3. §35.2.18.1ex fructibus medio tempore quartam et quartae fructus — A rule concerning the fruits (fructus) accruing during the "intermediate time" (between the death of the son and the restitution of the trust). If the father retains the Falcidian fourth and its fruits, the Trebellian senatusconsultum governing the transfer of trust estates should apply, allowing the transfer of beneficial actions.

Cite this passage

Justinian I, The Digest of Justinian §35.2.18.pr-35.2.18.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.18.pr-35.2.18.1

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