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Justinian I · The Digest of Justinian §35.2.91.pr

Imputation of Assets toward the Falcidian Portion and Trust Restitution

Passage 5536 of 9271 · Latin

Summary

The text explains the calculation of the Falcidian portion (the fourth part of the inheritance), distinguishing between what the heir takes by hereditary right and what is received via legacies or conditions, as well as the rules for imputation in the case of restoring a trust-inheritance.

[MARCIANUS libro tertio decimo institutionum. ] §35.2.91.prIn quartam hereditatis, quam per legem Falcidiam heres habere debet, imputantur res, quas iure hereditario capit, non quas iure legati uel fideicommissi uel inplendae condicionis causa accipit: nam haec in quartam non imputantur.
Into the fourth part of the inheritance, which the heir ought to have by the Falcidian law, are imputed those things which he takes by hereditary right, not those which he receives by right of a legacy or a trust-bequest or for the purpose of fulfilling a condition: for these latter are not imputed into the fourth.
sed in fideicommissaria hereditate restituenda siue legatum uel fideicommissum datum sit heredi siue praecipere uel deducere uel retinere iussus est, in quartam id ei imputatur: pro ea uero parte, quam accepit a coherede extra quartam id est, quod a coherede accipitur.
But in restoring a trust-inheritance, whether a legacy or a trust-bequest has been given to the heir, or he has been ordered to take beforehand, to deduct, or to retain, that is imputed to him into the fourth: but as for that part which he has received from a co-heir, it is outside the fourth, that is, what is received from a co-heir.
sed et si accepta pecunia hereditatem restituere rogatus sit, id quod accipit in quartam ei imputatur, ut diuus Pius constituit.
But also, if he has been requested to restore the inheritance upon receiving money, that which he receives is imputed to him into the fourth, as the divine Pius constitutionally established.
si quid uero implendae condicionis causa heres accipiat a legatariis, in Falcidiae computationem non prodesse: et ideo si centum praedium legauerit defunctus, si quinquaginta heredi legatarius dederit, centum legatis computationem fieri et quinquaginta extra hereditatem haberi, ne in quartam ei imputentur.
But if the heir receives anything from the legatees for the purpose of fulfilling a condition, it does not benefit him in the computation of the Falcidian law: and therefore, if the deceased bequeathed an estate worth one hundred, and the legatee gave fifty to the heir, the computation is made on the basis of one hundred for the legacies, and the fifty is held to be outside the inheritance, so that it is not imputed to him into the fourth.

Notes

  1. 35.2.91.prnon prodesse — An infinitive in indirect speech. A governing verb implying a ruling or tradition (such as 'it is said' or 'it is held') is omitted. The phrase 'does not benefit' means that the amount received by the heir from the legatee to fulfill a condition is not counted towards the heir's Falcidian fourth in the calculation.
  2. 35.2.91.prpraecipere uel deducere uel retinere — These refer to the legal methods—'to take beforehand,' 'to deduct,' or 'to retain'—by which an heir secures a portion of the property when restoring a trust-inheritance. Any benefit the heir obtains through these means is imputed to their Falcidian fourth.
  3. 35.2.91.prpro ea uero parte — The structure is 'pro ea uero parte ... id est, quod a coherede accipitur.' This part indicates an exception where any portion received from a co-heir is excluded from the standard calculation of the Falcidian fourth (extra quartam).

Cite this passage

Justinian I, The Digest of Justinian §35.2.91.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.91.pr

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