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Justinian I · The Digest of Justinian §37.5.18.pr

Liability for a Legacy to a Grandson when the Father Claims

Passage 5767 of 9271 · Latin

Summary

This section discusses who bears the liability for a legacy left to a grandson who was appointed co-heir with his uncle, and to what extent, when his emancipated father petitions for possession of goods contrary to the will.

[AFRICANUS libro quarto quaestionum. ] §37.5.18.prNepos qui in potestate mansit et filius suus heredes instituti sunt: nepoti legatum dedit: pater eius emancipatus petit bonorum possessionem: nepos legato contentus est.
[AFRICANUS book four of questions.] A grandson who remained under power and his son were appointed heirs; the testator gave a legacy to the grandson; the emancipated father of the grandson petitions for possession of the goods; the grandson is content with the legacy.
quidam in eum solum, qui in potestate esset, legati actionem nepoti dandam responderunt, quia ei nihil auferatur et emancipatus partem filii sui occupet, in qua onus legatorum non consisteret.
Some have answered that the action for the legacy should be granted to the grandson only against him who was under power, because nothing is taken away from him, and the emancipated father occupies the share of his own son, in which the burden of legacies would not reside.
sed rectius dicetur in emancipatum solum dandam esse actionem nepoti, et quidem non ultra quadrantem,
But it will be more correctly said that the action ought to be granted to the grandson only against the emancipated father, and indeed not beyond a fourth part,

Notes

  1. §37.5.18.prfilius suus — A third-person reflexive pronoun in the context of a will, referring to the testator's (the grandfather's) 'own son.' This son is a co-heir remaining under the power of the testator, serving as an uncle to the grandson.
  2. §37.5.18.prfilii sui — The word 'sui' in this phrase refers to the subject 'emancipatus' (the emancipated father), meaning 'his own son' (the grandson who remained under power). Care should be taken not to confuse this with the preceding 'filius suus' (the testator's son).
  3. §37.5.18.prin eum solum, qui in potestate esset — Refers to the 'testator's son' (filius suus) who was appointed heir by the will and remained under power, representing the heir whose portion is unaffected when the emancipated father petitions for possession.

Cite this passage

Justinian I, The Digest of Justinian §37.5.18.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.5.18.pr

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