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Justinian I · The Digest of Justinian §37.5.3.pr-37.5.3.7

Protection of Legacies and Gifts Mortis Causa for Excepted Persons

Passage 5752 of 9271 · Latin

Summary

Based on the praetor's edict, the text discusses the protection criteria and scope of legacies and donations mortis causa for excepted beneficiaries (such as parents and children) when possession of goods contrary to the will is granted, illustrating with concrete cases.

[ULPIANUS libro quadragesimo ad edictum. ] §37.5.3.prSed et si mortis causa donationes sunt in personas exceptas collatae, credo tuendae sunt: si autem excepti non sunt, auferendas eis puto mortis causa donationes.
[ULPIAN in the fortieth book on the Edict] But also if donations mortis causa have been conferred upon excepted persons, I believe they ought to be protected; but if they are not excepted, I think the donations mortis causa should be taken away from them.
§37.5.3.1Liberis autem tantum et parentibus praetor prospexit, non etiam fratri et sorori conseruauit legatum.
However, the praetor provided only for children and parents, and did not preserve the legacy for a brother and sister as well.
§37.5.3.2Hoc autem solum debetur, quod ipsis parentibus relictum est et liberis: ceterum si seruo eorum fuerit adscriptum uel subiectae iuri eorum personae, non debetur: nec enim quaerimus, cui adquiratur, sed cui honor habitus sit.
Moreover, only that is owed which was left to the parents and children themselves; on the other hand, if it was bequeathed to their slave or to a person subject to their power, it is not owed; for we do not ask to whom it is acquired, but to whom the honor was shown.
§37.5.3.3Sed et si coniunctim ei fuerit legatum relictum cum eo, cui non praestatur, sua tantum portio ei conseruabitur.
But also if a legacy was left to him jointly with someone to whom it is not paid, only his own share will be preserved for him.
§37.5.3.4Item si quis ex his personis rogatus sit restituere extero quod sibi relictum est, dicendum non esse legatum praestandum, quia emolumentum ad eum non respicit.
Likewise, if any of these persons has been requested to restore to a stranger what was left to him, it must be said that the legacy is not to be paid, because the benefit does not concern him.
§37.5.3.5Sed si proponas extero legatum rogatumque eum praestare hoc alicui ex liberis parentibusque, consequenter dicemus praestari debere.
But if you propose that a legacy was left to a stranger and he was requested to pay this to some of the children or parents, we shall consequently say that it ought to be paid.
§37.5.3.6Hoc amplius et si extraneo relictum sit sub hoc modo, ut alicui ex liberis praestet, aequissimum erit dicere non debere ei praetorem denegare actionem.
Furthermore, even if it was left to a stranger under this modus, that he should pay it to one of the children, it will be most equitable to say that the praetor ought not to deny him an action.
§37.5.3.7Ea autem legata sola praestant qui contra tabulas bonorum possessionem accipiunt, quae utiliter data sunt, uerum idcirco non debentur, quod filius contra tabulas bonorum possessionem accipit,
Moreover, those who accept the possession of goods contrary to the will pay only those legacies which were validly given, but are not owed for the very reason that the son accepts the possession of goods contrary to the will,

Notes

  1. §37.5.3.prpersonas exceptas — Refers to persons (such as children and parents) who enjoy an exceptional status under the praetor's edict, allowing them to have their legacies or donations mortis causa protected even when the possession of goods contrary to the will occurs.
  2. §37.5.3.6ei — The dative pronoun `ei` refers in this context to the child (alicui ex liberis) who is the substantial beneficiary. The praetor should not deny an action to the child to claim the performance of the legacy, even though it was formally left to a stranger.
  3. §37.5.3.7Ea autem legata sola praestant — The subject of the verb `praestant` is the following relative clause `qui contra tabulas bonorum possessionem accipiunt` (those who accept the possession of goods contrary to the will), while the object is the preceding `Ea... legata sola`.

Cite this passage

Justinian I, The Digest of Justinian §37.5.3.pr-37.5.3.7. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:37.5.3.pr-37.5.3.7

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