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Justinian I · The Digest of Justinian §35.2.79.pr

Estate Base and Aggregation of Legacies in Double Wills

Passage 5524 of 9271 · Latin

Summary

Gaius explains that in the calculation of the Falcidian law for double testaments, only the estate at the time of the father's death is considered, and legacies from both the first and second tablets are aggregated.

[IDEM libro octauo decimo ad edictum prouinciale. ] §35.2.79.prIn duplicibus testamentis siue de patrimonio quaeramus, ea sola substantia spectatur, quam pater cum moreretur habuerit, nec ad rem pertinet, si post mortem patris filius uel adquisierit aliquid uel deminuerit: siue de legatis quaeramus, tam ea quae in primis quam ea quae in secundis tabulis relicta sunt in unum contribuuntur, tamquam si et ea, quae a filii herede reliquisse testator, a suo herede sub alia condicione legasset.
[THE SAME, From the eighteenth book on the provincial edict.] In double testaments, if we inquire concerning the patrimony, only that estate is regarded which the father had when he died, nor is it of any relevance if, after the death of the father, the son has either acquired or diminished anything; if we inquire concerning legacies, both those which were left in the first tablets and those left in the second tablets are contributed into one, just as if the testator had bequeathed, under another condition from his own heir, even those things which he is regarded as having left from the heir of his son.

Notes

  1. 35.2.79.prduplicibus testamentis — "Double testaments" refers to the practice where a testator makes a regular testament for himself (on the first tablets) and at the same time makes a pupillary substitution (on the second tablets) to designate a substitute heir in case his minor child dies before reaching puberty.
  2. 35.2.79.prsiue... siue... — siue... siue... are used correlatively, contrasting the former clause siue de patrimonio quaeramus (if we inquire about the patrimony) with the latter clause siue de legatis quaeramus (if we inquire about the legacies).
  3. 35.2.79.prquae a filii herede reliquisse testator — The infinitive reliquisse suggests either the omission of a governing verb like videtur (he seems to have left) or a scribal error for reliquisset (subjunctive pluperfect). It functions as the verb of the relative clause "which the testator [is deemed] to have left."
  4. 35.2.79.pra filii herede — The preposition a (from) in the context of legacies indicates the person (the heir) upon whom the legacy is charged. a filii herede means "charged upon the heir of the son," and a suo herede means "charged upon his own heir."

Cite this passage

Justinian I, The Digest of Justinian §35.2.79.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.79.pr

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