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Justinian I · The Digest of Justinian §35.2.86.pr

Pre-legacy to an Heir and Retention under Trust and Falcidian Law

Passage 5531 of 9271 · Latin

Summary

The text discusses a case where a testatrix appointed her brother as heir to a third, pre-bequeathed certain estates to him, and requested him to restore the inheritance to others after retaining a fourth, and addresses how these pre-bequeathed estates should be accounted for under the trust and the Falcidian law.

[IDEM libro quadragesimo digestorum. ] §35.2.86.prTitia testamento suo Titium fratrem suum ex parte tertia heredem instituit fideique eius commisit, ut hereditatem retenta quarta parte Secundae et Proculae restituat: eadem fratri quaedam praedia praeleganit: quaero, an Titius ea quae praelegata sunt etiam pro ea parte hereditatis, quam rogatus est ut restitueret, restituere an integra retinere debeat.
[The same, from the fortieth book of digests.] Titia, by her will, appointed her brother Titius as heir to a third part, and entrusted to his good faith to restore the inheritance to Secunda and Procula after retaining a fourth part; she, the same woman, pre-bequeathed certain estates to her brother. I ask whether Titius ought to restore those things which were pre-bequeathed, even in proportion to that part of the inheritance which he was asked to restore, or whether he ought to retain them whole.
respondi Titium legata integra retinere debere, sed in partem quartam imputari oportere duodecimam partem praediorum.
I replied that Titius ought to retain the legacies whole, but that a twelfth part of the estates ought to be imputed to the fourth part.
sed si non esset adiectum, ut pars quarta deduceretur, totum trientem praediorum legi Falcidiae imputari oportere, quoniam contra sententiam matris familiae lex Falcidia induceretur.
But if it had not been added that a fourth part should be deducted, the entire third part of the estates ought to be imputed to the Falcidian law, since the Falcidian law would be introduced against the intention of the mother of the family.

Notes

  1. 35.2.86.prretenta quarta parte — An ablative absolute construction consisting of the noun 'quarta parte' and the participle 'retenta'. The 'fourth part' here refers to the 'quarta Pegasiana' (Pegasian fourth) which the heir was permitted to retain from the trust inheritance.
  2. 35.2.86.prquaero, an... an... — An indirect double question introduced by `an ... an ...` with the subjunctive present `deat`, serving as the object of the verb `quaero`. It presents an alternative: whether he ought to restore them or retain them whole.
  3. 35.2.86.prduodecimam partem — Titius's instituted share is one-third (4/12). The fourth part (quarta pars) he is entitled to retain from the trust is one-fourth of his own share (one-third), which equals one-twelfth (1/3 * 1/4 = 1/12) of the entire inheritance; therefore, a twelfth part of the pre-bequeathed estates is to be imputed to this retained portion.
  4. 35.2.86.prtotum trientem praediorum — 'The entire third part of the estates'. `triens` means one-third (4/12), referring here to the entirety of the estates corresponding to Titius's share (one-third). Even without the express clause to deduct a fourth part, by the operation of the Falcidian law, the entire third part of the estates equivalent to his share is to be imputed to the calculation under that law.

Cite this passage

Justinian I, The Digest of Justinian §35.2.86.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.86.pr

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