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Justinian I · The Digest of Justinian §37.4.4.pr-37.4.4.3

Self-Successorship and Possession Contrary to Will

Passage 5732 of 9271 · Latin

Summary

The passage discusses the differences in requirements for the bonorum possessio of patrons and children, the scope of self-successors among children, the non-applicability to women's testaments, and the granting of bonorum possessio to instituted heirs when a child in the womb is passed over.

[PAULUS libro quadragesimo primo ad edictum. ] §37.4.4.prIllud notandum est, quod bonorum possessio contra tabulas quae liberis promittitur locum habet, siue quis heres exstiterit siue non: et hoc est quod dicimus contra ipsum testamentum liberis competere bonorum possessionem: quod in patrono contra est.
[PAULUS libro quadragesimo primo ad edictum.] It must be noted that the possession of goods contrary to the will which is promised to children has place, whether anyone becomes heir or not; and this is why we say that the possession of goods contrary to the will belongs to children against the testament itself; whereas in the case of a patron, it is the reverse.
§37.4.4.1Si quis filium quem in potestate habuit instituerit heredem uel exheredauerit et ex eo nepotem omiserit, bonorum possessioni locus non est, quia non esset nepos suus heres futurus.
If anyone has instituted as heir or disinherited a son whom he had under his power, and has passed over a grandson by him, there is no room for the possession of goods, because the grandson would not have been a self-successor.
eadem sunt et in sequentibus gradibus.
The same holds true also in the subsequent degrees.
§37.4.4.2Ad testamenta feminarum edictum contra tabulas bonorum possessionis non pertinet, quia suos heredes non habent.
The edict on the possession of goods contrary to the will does not apply to the testaments of women, because they do not have self-successors.
§37.4.4.3Si quis eum qui in utero est praetermiserit, etiam nondum nato eo alius qui heres institutus est bonorum possessionem contra tabulas admittere potest, quia iniquum est neque quasi scriptum posse petere bonorum possessionem, quamdiu contra tabulas peti potest, nec contra tabulas, quamdiu non nascitur praeteritus: ut et si ante moriatur, bonorum possessionis beneficium ad heredem transmittat.
If anyone has passed over a child in the womb, even before he is born, another who has been instituted heir can admit the possession of goods contrary to the will, because it is inequitable that he should neither be able to petition for the possession of goods as if appointed, as long as it can be petitioned for contrary to the will, nor contrary to the will, as long as the one who was passed over is not born; so that even if he should die beforehand, he may transmit the benefit of the possession of goods to his heir.
quod maxime necessarium est in filio emancipato scripto herede, qui nec hereditatem interim adire potest.
This is especially necessary in the case of an emancipated son who is appointed heir, who cannot in the meantime even enter upon the inheritance.

Notes

  1. 37.4.4.prquod in patrono contra est — This points out the asymmetry where the possession of goods contrary to the will (bonorum possessio contra tabulas) promised to children is available regardless of whether anyone becomes an heir (heres exstiterit), whereas in the case of a patron's rights over a freedman, it is necessary that an heir actually exists.
  2. 37.4.4.1quia non esset nepos suus heres futurus — The reason is that since the son, who would be directly released from the father's power (patria potestas) upon his death, is either instituted as heir or disinherited, the grandson by that son would not immediately become a self-successor (suus heres) upon the grandfather's death. The determination of self-successors depends on the legal status of the intermediate generation.
  3. 37.4.4.3alius qui heres institutus est bonorum possessionem contra tabulas admittere potest — Here, 'admittere' means that the instituted heir (alius) can 'admit' or accept (by petitioning for) the possession of goods contrary to the will. If a child in the womb is passed over, during the uncertain period before birth, the instituted heir (such as an emancipated son) can proactively accept the possession of goods contrary to the will to avoid disadvantages, such as being unable to transmit his position to his heirs if he dies in the meantime.

Cite this passage

Justinian I, The Digest of Justinian §37.4.4.pr-37.4.4.3. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.4.4.pr-37.4.4.3

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