Justinian I · The Digest of Justinian §36.2.31.pr

Conditional Trust for Wife Dying before Inheritance

Passage 5672 of 9271 · Latin

Summary

In a case regarding a conditional fideicommissum made in favor of a wife should she not become the heir, Scaevola answers that her right to the trust became vested at her death even though she died before entering upon the inheritance, and thus the right is transmitted to her heirs.

[SCAEUOLA libro quarto decimo digestorum. ] §36.2.31.prUxori ex parte sextante heredi institutae substituit et heredem fidei commisit, si uxor heres non erit, dotem ei et alia quaedam dari: post mortem mariti uxor ante condicionem et priusquam adeat hereditatem decessit.

[SCAEUOLA, fourteenth book of Digest.] A testator substituted an heir to his wife, who had been appointed heir to a sixth part, and charged the heir by a fideicommissum that, if his wife should not be the heir, her dower and certain other things should be given to her: after the death of the husband, the wife died before the condition was fulfilled and before she entered upon the inheritance.

quaesitum est, an dies fideicommissi cum moritur cessisse uideatur ideoque heredibus eius debeatur.

It was asked whether the day of the fideicommissum is deemed to have ceded when she died, and therefore whether it is due to her heirs.

respondi, si uxor prius decessit, quam hereditatem adiret, uideri diem fideicommissi cessisse.

I replied that, if the wife died before she entered upon the inheritance, the day of the fideicommissum is deemed to have ceded.

Notes

36.2.31.prex parte sextante — This means a share of one-sixth (sextans) of the inheritance. In Roman law, the entire estate (as) was divided into twelve parts (unciae), and this phrase designates an heir appointed to two of these parts (2/12 = 1/6).
36.2.31.prsubstituit et heredem fidei commisit — The verb substituit means that the testator appointed a substitute heir (substitutus) in case the primary heir (the wife) did not become the heir. heredem fidei commisit means "charged the heir with a trust (fideicommissum)," where heredem refers to this substitute heir. If the condition that the wife does not become the heir (si uxor heres non erit) is met, the substitute heir is under a trust obligation to deliver the dowry and other things to her.
36.2.31.prdies ... cessisse — A technical term in Roman law (dies cedit) meaning that the right to a legacy or trust has become vested (or has arisen). Once this occurs, even if the beneficiary dies before receiving actual performance, the right is transmitted to their heirs (heredibus eius).

Cite this passage

Justinian I, The Digest of Justinian §36.2.31.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.2.31.pr

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