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Justinian I · The Digest of Justinian §36.1.74.pr

Pre-legacy of Another's Land and Retention of Its Value

Passage 5628 of 9271 · Latin

Summary

A case where an heir was requested to restore an inheritance after pre-taking a piece of land that turned out to belong to another; Aristo determined that the valuation of the land should be retained by the heir, favoring the testator's presumed intent.

[POMPONIUS libro quarto fideicommissorum. ] §36.1.74.prHeres praecepto fundo rogatus erat hereditatem restituere: fundus alienus erat.
[POMPONIUS, On Trusts, Book 4] An heir had been requested to restore the inheritance after pre-taking a tract of land; the land belonged to another.
Aristo aiebat uidendum, utrum omnimodo penes heredem fundum esse uoluit testator an ita demum, si ipsius est: sed sibi superius placere: ideoque aestimatio eius retinenda est.
Aristo said that it should be considered whether the testator wished the land to be in the hands of the heir in any event, or only if it was his own; but that the former view pleased him, and therefore its valuation should be retained.

Notes

  1. §36.1.74.prpraecepto fundo — The participle praecepto derives from praecipere (to take beforehand, pre-take). It describes a situation where the heir, while requested to restore the entire inheritance to another under a trust, was granted the right to keep a specific tract of land beforehand as his own share (praeceptio).
  2. §36.1.74.prsuperius — A neuter comparative used substantively, meaning 'the former (view)'. It refers to the first alternative of the utrum ... an ... clause (namely, that the testator wished the land to remain with the heir in any event), indicating that this was Aristo's own preferred interpretation (placere sibi).

Cite this passage

Justinian I, The Digest of Justinian §36.1.74.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.74.pr

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