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Justinian I · The Digest of Justinian §36.1.2.pr

Payment to Legatees upon Compulsory Entry and Restitution

Passage 5553 of 9271 · Latin

Summary

This chunk discusses the amount a beneficiary must pay to a legatee when an heir, requested to restore the inheritance (with a legacy of 300 out of a total estate of 400), enters upon a suspected inheritance by the praetor's order. It concludes that based on the calculation under the Falcidian law, the amount due to the legatee is capped at what would have been paid had the heir entered upon it voluntarily (225).

[CELSUS libro uicesimo primo digestorum. ] §36.1.2.prQui quadringenta reliquit, Titio trecenta legauit, heredis fidei commisit, ut tibi hereditatem restitueret, isque suspectam iussu praetoris adiit et restituit: quaerebatur, quid legatario dare deberes.
[CELSUS from the twenty-first book of his Digests.] A person who left four hundred bequeathed three hundred to Titius, and entrusted to the good faith of his heir to restore the inheritance to you; and the heir, under the praetor's order, entered upon the inheritance which was suspected, and restored it. The question was, how much you ought to give to the legatee.
dicendum est, quia praesumptum est uoluisse testatorem cum onere legatorum fideicommissum restitui, tota trecenta te dare Titio debere: nam heres hoc rogatus intellegi debet, ut te suo loco constituat et quod heres perfunctus omnibus hereditariis muneribus, id est post legatorum dationem, reliquum habiturus foret, si non esset rogatus et tibi restitueret hereditatem, id tibi restituat.
It must be said that, since the testator is presumed to have wished the trust to be restored with the burden of the legacies, you ought to give the entire three hundred to Titius. For the heir must be understood to have been requested to place you in his own position, and to restore to you, when he restores the inheritance to you, what he would have had as a remainder after performing all hereditary duties (that is, after the payment of the legacies) if he had not been requested to restore.
quantum ergo haberet? nempe centum: haec ut tibi daret rogatus est.
How much, then, would he have had? Surely one hundred; he was requested to give this to you.
itaque sic ineunda est legis Falcidiae ratio, quasi heres trecenta Titio dare damnatus, tibi centum dare damnatus sit: quo euenit, ut, si hereditatem sua sponte adisset, daret Titio ducenta uiginti quinque, tibi septuaginta quinque.
Therefore, the calculation under the Falcidian law must be entered into as if the heir had been condemned to give three hundred to Titius, and condemned to give one hundred to you. Consequently, it happens that, if he had entered upon the inheritance of his own accord, he would have given two hundred and twenty-five to Titius, and seventy-five to you.
non ergo plus Titio debetur, quam si iniussu praetoris adita hereditas foret.
Therefore, no more is due to Titius than if the inheritance had been entered upon without the praetor's order.

Notes

  1. 36.1.2.prsuspectam — suspectam is an adjective modifying the implied hereditatem (inheritance). In this context, a 'suspected inheritance' (hereditas suspecta) refers to an inheritance suspected of being insolvent (where debts exceed assets). It assumes the legal procedure where an heir, hesitant to accept the inheritance due to liability for debts, is compelled by the praetor's order (iussu praetoris) at the request of the beneficiary to enter upon it (adiit) and immediately restore it to the beneficiary.
  2. 36.1.2.prreliquum habiturus foret, si non esset rogatus et tibi restitueret hereditatem, id tibi restituat — Syntactically, the relative clause introduced by quod (quod heres ... reliquum habiturus foret, 'what the heir would have had as a remainder') is picked up by the demonstrative pronoun id ('that') in the main part of the ut-clause (ut te suo loco constituat et ... id tibi restituat, 'to place you in his own position and... restore that to you'). si non esset rogatus ('if he had not been requested to restore') is a conditional clause, and et tibi restitueret hereditatem ('and if he were to restore the inheritance to you') sets up the hypothetical scenario to determine the amount (100) that he would have kept for himself in the current context of restoration.

Cite this passage

Justinian I, The Digest of Justinian §36.1.2.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.2.pr

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