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Justinian I · The Digest of Justinian §37.4.21.pr-37.4.21.2

Possession contrary to will between adopted and emancipated relations

Passage 5749 of 9271 · Latin

Summary

The text discusses cases where a grandson remaining in the grandfather's power can petition for the possession of goods contrary to the will of his natural father (who was adopted and then emancipated) or that of his grandfather.

[MODESTINUS libro sexto pandectarum. ] §37.4.21.prSi is, qui filium et ex eo nepotem in potestatem habebat, filium in adoptionem dedit nepote retento in potestate, postea filius emancipatus a patre adoptiuo decessit extraneis heredibus institutis: filius huius, qui in potestate aui remansit, contra tabulas patris sui bonorum possessionem petere poterit, quamuis numquam in potestate huius fuerit.
If a person, who had a son and a grandson by him in his power, gave the son in adoption while retaining the grandson in his power, and afterwards the son, having been emancipated by his adoptive father, died with outside heirs designated: his son, who remained in the power of the grandfather, will be able to petition for the possession of goods contrary to the will of his own father, although he was never in the latter's power.
ideo nec debuisse in potestate esse uidetur.
Therefore, it seems that there was no need for him to have been in his power.
nam, si aliter obseruatur, nec si emancipatus filius fuerit, nepos ex eo, qui in potestate aui remansit, bonorum possessionem contra tabulas petere poterit. §37.4.21.1Idemque iuris est, si emancipato filio nepos ex eo in potestate aui remanserit et postea patri suo in adoptionem datus fuerit: id est contra tabulas aui bonorum possessionem petere poterit, quia per adoptionem in aliena familia non fuerit. §37.4.21.2Sed si emancipatus filius meus adoptauerit extraneum filium, is qui adoptatus est filius contra tabulas meas bonorum possessionem petere non poterit, quia numquam nepotis loco apud me fuit.
For if it were observed otherwise, even if the son had been emancipated, the grandson by him who remained in the power of the grandfather would not be able to petition for the possession of goods contrary to the will. The same rule of law applies if, when a son has been emancipated, the grandson by him remained in the power of the grandfather and was afterwards given in adoption to his own father; that is, he will be able to petition for the possession of goods contrary to the will of the grandfather, because by the adoption he was not in a foreign family. But if my emancipated son has adopted an outside son, the son who was adopted will not be able to petition for the possession of goods contrary to my will, because he was never in the position of a grandson with respect to me.

Notes

  1. 37.4.21.prfilius huius — The pronoun `huius` in both `filius huius` ("his son") and `in potestate huius` ("his power") refers to the natural father who was given in adoption, later emancipated, and died. The subject `filius` itself refers to the grandson who remained in the grandfather's power.
  2. 37.4.21.prdebuisse in potestate esse uidetur — This is a personal construction with `uidetur`, where the omitted subject is the grandson who remained in the grandfather's power. `debuisse` (perfect infinitive of `debeo`) expresses a past necessity/obligation, meaning "it does not seem that he was required to have been in [the father's] power."
  3. 37.4.21.1emancipato filio — An ablative absolute consisting of the noun `filius` and the perfect participle `emancipatus`, expressing the background circumstance or temporal condition "when the son was emancipated" or "upon the emancipation of the son."

Cite this passage

Justinian I, The Digest of Justinian §37.4.21.pr-37.4.21.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.4.21.pr-37.4.21.2

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