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Justinian I · The Digest of Justinian §37.5.25.pr-37.5.25.2

Grandson's Possession Against the Will and Protection

Passage 5774 of 9271 · Latin

Summary

Marcellus discusses the grandson's right to petition for possession of goods contrary to the will when his emancipated father is disinherited while the grandson is appointed heir and another son is passed over, as well as the protection of a grandson whose father was adopted into another family.

[MARCELLUS libro nono digestorum. ] §37.5.25.prQui filium emancipauerat et nepotem ex eo retinuerat in potestate, testamento filium exheredauit, nepotem ex aliqua parte instituit heredem et alium filium emancipatum praeteriit.
[MARCELLUS, book nine of the Digests.] A person who had emancipated his son and had retained in his power a grandson by him, disinherited the son in his will, appointed the grandson as heir to a certain share, and passed over another emancipated son.
potest defendi nepotem quoque bonorum possessionem contra tabulas petere posse: nam pro ea parte, qua quisque intestato suus heres esset, si pater suus heres non esset, bonorum possessio defertur.
It can be defended that the grandson also can petition for the possession of goods contrary to the provisions of the will; for the possession of goods is granted in proportion to the share for which each person would be his own heir on intestacy, if his father were not his own heir.
§37.5.25.1Is, cuius filius in adoptione erat, nepotem, quem filius postea procreauerat, scripsit heredem, emancipatum filium praeteriit: num habet nepos ex edicto bonorum possessionem? tuendus tamen exemplo parentium et liberorum, quibus legata praestare coguntur qui bonorum possessionem contra tabulas acceperunt.
A person whose son was in adoption appointed as heir a grandson whom the son had begotten afterwards, and passed over an emancipated son: does the grandson have the possession of goods under the Edict? He must nevertheless be protected on the analogy of parents and children, to whom those who have received the possession of goods contrary to the provisions of the will are compelled to pay legacies.
§37.5.25.2Si forte ex eodem filio retinuerat nepotem unum pluresue, indubitate pro ea parte tuendus est, pro qua parte tueretur, si ex filia nepos aut mater defuncti heredes instituti essent: nam his comparatur.
If by chance he had retained in his power one or more grandsons by the same son, he must undoubtedly be protected in proportion to the share for which he would be protected if a grandson by a daughter or the mother of the deceased had been appointed heirs; for he is compared to them.

Notes

  1. §37.5.25.prQui filium — The antecedent (is) of the relative pronoun qui, which serves as the subject of the main clause, is omitted.
  2. §37.5.25.prpotest defendi — The impersonal construction potest defendi is followed by the accusative with infinitive clause nepotem quoque... posse as its subject.
  3. §37.5.25.1tuendus tamen — The gerundive tuendus is used here with the omission of the copula est, expressing obligation or necessity.
  4. §37.5.25.1quibus legata praestare coguntur — The antecedent of the relative pronoun quibus is parentium et liberorum, serving as the dative object of praestare. The subject of coguntur is the clause qui... acceperunt.

Cite this passage

Justinian I, The Digest of Justinian §37.5.25.pr-37.5.25.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.5.25.pr-37.5.25.2

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