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Justinian I · The Digest of Justinian §36.1.79.pr-36.1.79.1

Discharge of Trust Obligations by the Birth of Children

Passage 5633 of 9271 · Latin

Summary

The text determines the satisfaction of trust conditions: first, whether heirs are freed from a trust once two children are born, and second, whether a surviving daughter born from an invalid marriage with an insane woman suffices to prevent a trust conditioned on dying without children from taking effect.

[IDEM libro uicensimo digestorum. ] §36.1.79.prHeredibus institutis filiis utriusque sexus singulos rogauit, ut qui sine liberis decederet partem suam hereditatis sorori fratriue restitueret aut, si frater sororue non esset, matri suae et haec uerba adiecit: 'uosque, liberi carissimi, hoc fideicommisso teneri inuicem uolo, donec binos liberos educaueritis'.
[THE SAME, Digest, Book 20] Having appointed his children of both sexes as heirs, he requested each of them that whoever died without children should restore his or her share of the inheritance to a sister or brother, or, if there were no brother or sister, to his or her mother; and he added these words: "And you, my dearest children, I wish you to be bound to one another by this trust until you have reared two children." The question was asked: if one of the children had begotten two children, but did not leave them surviving, whether his heirs owed the trust.
quaesitum est, si quis ex liberis duos filios procreauerit, quamuis superstites non reliquerit, an heredes eius fideicommissum debeant. respondit secundum ea quae proponerentur uideri fideicommissi onere liberatos.
He answered that according to the facts proposed, they seemed to be released from the burden of the trust.
§36.1.79.1Titius nepotes ex filia et furiosam filiam suam heredes instituit et fidei commisit filiae, ut, si sine liberis decessisset, pars ei data perueniret ad coheredes: eam furiosam ipse Titius in matrimonio collocauit et enixa est filiam post mortem patris.
Titius appointed his grandchildren by his daughter and his insane daughter as heirs, and left a trust to the daughter that, if she should die without children, the share given to her should go to her co-heirs; Titius himself gave this insane daughter in marriage, and she gave birth to a daughter after the death of her father.
quaesitum est, defuncta furiosa superstite ex eiusmodi coniunctione parta filia, an fideicommissum ad coheredes pertineret.
The question was asked: upon the death of the insane daughter, a daughter born of such a union surviving her, whether the trust belonged to the co-heirs.
respondit, cum filiam reliquisse proponeretur, fideicommissum non deberi.
He answered that since it was proposed that she had left a daughter, the trust was not owed.
CLAUDIUS: nam etsi matrimonium cum furiosa non fuit, satis tamen factum est eiusmodi condicioni.
CLAUDIUS: For even if there was no marriage with an insane woman, such a condition was nevertheless satisfied.

Notes

  1. 36.1.79.prbinos — The distributive numeral "binos" indicates that each of the testator's children must rear "two children each" to satisfy the condition.
  2. 36.1.79.prliberatos — An accusative masculine plural participle acting as the omitted subject of the infinitive "uideri", referring back to "heredes eius" (his heirs) from the preceding indirect question.
  3. 36.1.79.1superstite ex eiusmodi coniunctione parta filia — An ablative absolute phrase ("superstite ... filia"), where "parta" is a participle modifying "filia". It stands alongside another ablative absolute "defuncta furiosa", setting up the dual conditions of the insane daughter's death and her child's survival.
  4. 36.1.79.1matrimonium cum furiosa non fuit — In Roman law, a marriage with an insane person (furiosa) is invalid due to the lack of capacity to consent. However, Claudius notes that even though the marriage was legally non-existent, the condition ("if she dies without children") was nevertheless satisfied (i.e., the condition for the trust to fail was met) by the factual existence of the surviving daughter.

Cite this passage

Justinian I, The Digest of Justinian §36.1.79.pr-36.1.79.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.1.79.pr-36.1.79.1

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