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Justinian I · The Digest of Justinian §36.2.7.pr-36.2.7.6

Delay in Heir's Acceptance and Vesting of Legacies

Passage 5648 of 9271 · Latin

Summary

Discusses the effect of the heir's acceptance of inheritance on the petition and vesting (dies cedit) of a legacy, stating that while delay in acceptance generally does not prevent the vesting of the legatee's rights, there are exceptions such as legacies involving manumitted or bequeathed slaves where vesting is delayed until acceptance.

[ULPIANUS libro uicesimo ad Sabinum. ] §36.2.7.prHeredis aditio moram legati quidem petitioni facit, cessioni diei non facit.
[ULPIAN in the twentieth book on Sabinus.] The acceptance of the inheritance by the heir indeed causes a delay in the petition for the legacy, but it does not cause a delay in the vesting of the right.
§36.2.7.1Proinde siue pure institutus tardius adeat siue sub condicione per condicionem impediatur, legatarius securus est.
Therefore, whether the heir appointed unconditionally accepts late, or whether he is prevented by a condition, the legatee is secure.
§36.2.7.2Sed et si nondum natus sit heres institutus aut apud hostes sit, similiter legatario non nocebit, eo quod dies legati cessit.
But even if the appointed heir is not yet born, or is in the hands of the enemy, it will likewise not harm the legatee, because the day of the legacy has vested.
§36.2.7.3Inde dicimus et si a substituto legatum sit relictum, quamdiu institutus deliberat defuncto legatario non nocebit, si postea heres institutus repudiauit: nam ad heredem suum transtulit petitionem.
Hence we say that even if a legacy is left by a substitute heir, as long as the appointed heir is deliberating, it will not harm the deceased legatee if the appointed heir afterwards repudiates; for he has transmitted the petition to his own heir.
§36.2.7.4Tantundem et si ab impuberis substituto legetur: nam ad heredem suum legatum transfert.
The same holds good even if a legacy is given by the substitute of an impuberic child; for he transmits the legacy to his own heir.
§36.2.7.5Tractari tamen potest, si impuberi substitutus damnatus sit, si intra pubertatem filius decesserit, Seio centum dare, an uiuo pupillo defunctus Seius ad heredem transferat, quasi ea condicio sit expressa, quae inerat.
However, it can be discussed, if the substitute for an impuberic child is ordered, "if the son dies before reaching puberty," to give one hundred to Seius, whether Seius, dying during the lifetime of the ward, transmits the legacy to his heir, as if the condition which was inherent had been expressed.
et magis est ad heredem legatarii transire.
And the better opinion is that it passes to the heir of the legatee.
§36.2.7.6Interdum aditio heredis legatis moram facit, ut puta si forte seruo manumisso uel ei cui seruus legatus est et ideo seruo aliquid legatum sit: nam seruo legati relicti ante aditam hereditatem dies non cedit.
Sometimes the acceptance of the inheritance by the heir causes a delay to legacies; as, for example, if a legacy is given to a slave who is to be manumitted, or to one to whom a slave is bequeathed, and for that reason something is bequeathed to the slave; for the day of a legacy left to a slave does not vest before the inheritance is accepted.

Notes

  1. §36.2.7.prcessioni diei — "cessioni diei" (the vesting of the right, literally "the cession of the day") is a nominal phrase corresponding to "dies cedit", the moment when the legatee acquires a vested interest. Although the heir's delay in acceptance (aditio) postpones the actual demand (petitio) for the legacy, it does not hinder this vesting, allowing the legacy to be transmitted to the legatee's heirs even if the legatee dies before acceptance.
  2. §36.2.7.2apud hostes sit — The phrase "apud hostes sit" (is in the hands of the enemy) denotes that the appointed heir is a prisoner of war and cannot immediately accept the inheritance, temporarily suspending his legal capacity. Despite this objective impossibility of acceptance, the vesting of the legacy (dies cedit) is unaffected, safeguarding the legatee's interest.
  3. §36.2.7.5quasi ea condicio sit expressa, quae inerat — In pupillary substitution (substitutio pupillaris), the event of "the child dying before puberty" is an implicitly inherent condition (condicio tacita). Even if this condition is explicitly expressed (expressa) in the testament, it does not function as an ordinary conditional legacy that would require the legatee to survive until the condition is fulfilled; thus, the legatee's rights are transmissible to his heir even if he dies during the ward's lifetime.
  4. §36.2.7.6seruo legati relicti ante aditam hereditatem dies non cedit — A legacy left to a slave (or one contingent upon his manumission or transfer) requires the heir's acceptance (aditio) of the inheritance as an essential prerequisite for the slave to gain capacity or to be acquired. Therefore, in this exceptional case, the delay in acceptance causes a delay not just in the demand (petitio) but in the vesting of the right (dies cedit) itself.

Cite this passage

Justinian I, The Digest of Justinian §36.2.7.pr-36.2.7.6. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:36.2.7.pr-36.2.7.6

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