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Justinian I · The Digest of Justinian §36.1.53.pr

Restitution under Trust and Deduction of Dowry by Co-Heir Wife

Passage 5606 of 9271 · Latin

Summary

Discusses the treatment of unclaimed legacies in the restoration of an inheritance, and explains how a wife as co-heir deducts her pre-legacyed dowry.

[IDEM libro septimo decimo quaestionum. ]
[THE SAME, Questions, Book 17] When an heir is requested to restore an inheritance through a trust after deducting legacies, it is not approved that those legacies which could not be claimed should be deducted.
§36.1.53.prCum heres deductis legatis hereditatem per fideicommissum restituere rogatur, non placet ea legata deduci, quae peti non poterant. sed cum uxori pro parte heredi scriptae dos praelegetur eaque deductis legatis hereditatem restituere rogatur: etiamsi quarta, quam per legem Falcidiam retinet, tantum efficiat, quantum in dote est, tamen pro sua portione dotis praelegatae partem deducit.
But when a dowry is pre-legacyed to a wife who is appointed heir for a part, and she is requested to restore the inheritance after deducting legacies: even if the fourth which she retains under the Falcidian law amounts to as much as is in the dowry, nevertheless she deducts a part of the pre-legacyed dowry in proportion to her share.
cum enim utrumque consequitur, nihil interest inter hanc mulierem et quemuis alium creditorem heredem institutum et hereditatem restituere rogatum.
For since she obtains both, there is no difference between this woman and any other creditor who has been appointed heir and requested to restore the inheritance.
idem probatur et si non deductis legatis fideicommissum ab ea relictum sit.
The same is approved even if the trust has been left to be restored by her without the deduction of legacies.

Notes

  1. §36.1.53.prdeductis legatis — Ablative absolute construction, meaning "after deducting legacies". It refers to the deduction of the amount of legacies (legata) from the total inheritance before the heir restores the remaining estate via a trust (fideicommissum).
  2. §36.1.53.prfideicommissum ab ea relictum sit — The prepositional phrase 'ab ea' means 'from her,' indicating the person charged with the trust. In Roman law, the expression 'fideicommissum ab aliquo relinquere' means to impose the obligation of a trust upon someone (in this case, the wife as heir).

Cite this passage

Justinian I, The Digest of Justinian §36.1.53.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.53.pr

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