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Justinian I · The Digest of Justinian §36.1.44.pr

Accrual of Inherited Share After Compulsory Restitution

Passage 5597 of 9271 · Latin

Summary

Ulpian cites Papinian regarding whether a beneficiary of a trust needs an additional action or a new restoration of inheritance when a share of the inheritance accrues to the appointed heir after the initial forced entry and restoration of a half share; Papinian concludes that neither is necessary.

[ULPIANUS libro uicensimo secundo ad edictum. ] §36.1.44.prPapinianus tractat, si quis heres institutus ex semisse rogatus sit restituere hereditatem et eam suspectam dicens compulsus adit, deinde fideicommissarius gnarus sit adcrcuisse portionem hereditatis post restitutionem scripto heredi, an opus sit ei alia actione.
[ULPIAN, On the Edict, Book XXII] Papinian discusses the question whether, if a person appointed heir to a half share has been requested to restore the inheritance and, declaring it to be suspect, has entered upon it under compulsion, and then the beneficiary of the trust is aware that a share of the inheritance has accrued to the appointed heir after the restoration, he has need of another action.
et ait securum esse cum posse de illo: plane de hoc solo quaerendum ait, an ei opus sit noua restitutione, posteaquam portio adcreuit: sed ne hanc quidem necessariam esse.
And he says that he can be secure as to that; but he says that inquiry must indeed be made as to this alone, whether he has need of a new restoration after the share has accrued, but that not even this is necessary.

Notes

  1. §36.1.44.prcompulsus adit — Refers to the legal procedure under the Senatusconsultum Trebellianum where, if the heir hesitates to enter upon the inheritance due to it being suspect (suspectam), the praetor compels the heir to enter (compellere) at the request of the beneficiary, thereby transferring all liabilities to the beneficiary.
  2. §36.1.44.pradcreuisse portionem — Refers to the accrual of an additional share of the inheritance to the appointed heir (scripto heredi) by right of accrual (ius accrescendi), for example, due to the refusal of a co-heir.
  3. §36.1.44.prcum posse — The word cum in the text is interpreted as a scribal error for eum (referring to the beneficiary, fideicommissarius), serving as the subject accusative of the infinitive phrase: securum esse eum posse ('that he can be secure').

Cite this passage

Justinian I, The Digest of Justinian §36.1.44.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.44.pr

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