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Justinian I · The Digest of Justinian §35.2.92.pr

Bequests Before and After Discharge and the Falcidian Fourth

Passage 5537 of 9271 · Latin

Summary

The text discusses how the deduction of the Falcidian fourth is applied to trust-bequests made by a soldier during active service and after discharge, depending on whether his death occurs more than a year after his discharge or within it.

[MACER libro secundo de re militari. ] §35.2.92.prSi miles testamento facto partem dimidiam hereditatis suae tibi restitui iusserit, deinde post missionem factis codicillis alteram partem Titio restitui rogauerit: si quidem post annum missionis suae decesserit, et tibi et Titio heres partem quartam retinebit, quia eo tempore testator decessit, quo testamentum eius ad beneficium principale pertinere desierat: si uero intra annum missionis decesserit, solus Titius deductionem partis quartae patietur, quia eo tempore fideicommissum ei relictum est, quo testator iure militari testari non potuit.
If a soldier, having made a will, ordered half of his inheritance to be restored to you, and then, after his discharge, having made a codicil, requested the other half to be restored to Titius: if indeed he died after a year from his discharge, the heir will retain a fourth part against both you and Titius, because the testator died at a time when his will had ceased to belong to the imperial privilege; but if he died within a year of his discharge, Titius alone will suffer the deduction of the fourth part, because at the time when the trust-bequest was left to him, the testator could not make a will by military law.

Notes

  1. 35.2.92.prbeneficium principale — Refers to the 'imperial privilege.' This is the special privilege, based on imperial constitutions, which allowed soldiers to enjoy certain testamentary exemptions (such as relaxed formalities and exemption from the Falcidian law). This privilege lasted for one year after discharge.
  2. 35.2.92.preo tempore... quo... — A temporal construction consisting of the ablative of time 'eo tempore' followed by the relative adverb 'quo'. The first 'quo' clause means 'when his will had ceased to belong to the imperial privilege,' and the second means 'when the testator could not make a will by military law.'
  3. 35.2.92.prtibi et Titio — Datives depending on the verb 'retinebit' (will retain). It indicates that the heir will deduct and retain the fourth part under the Falcidian law from the respective shares of the trust-bequests to be restored to 'you' and 'Titius.'

Cite this passage

Justinian I, The Digest of Justinian §35.2.92.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:35.2.92.pr

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