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Justinian I · The Digest of Justinian §38.17.10.pr-38.17.10.1

Camp Peculium and Suspended Inheritance Rights of Mothers

Passage 6097 of 9271 · Latin

Summary

This passage denies the mother's right of inheritance when a soldier who is a filius familias dies intestate regarding his camp-acquired property, and details how the mother's suspended rights become fully established when other potential heirs fail to appear.

[POMPONIUS libro secundo senatus consultorum. ] §38.17.10.prSi filius familias miles non sit testatus A de his, quae in castris adquisierit, an ea ad matrem pertineant, uidendum est.
[POMPONIUS in the second book on the Senatus Consulta.] If a soldier who is a filius familias has not made a will concerning those things which he acquired in the camp, it must be considered whether they belong to the mother.
sed non puto: magis enim iudicio militum hoc beneficium concessum est, non ut omnimodo quasi patres familiarum in ea re sint.
But I do not think so: for this benefit is granted rather to the judgment of soldiers, not so that they should in every way be as if they were patres familiarum in that matter.
§38.17.10.1Quando in pendenti est, an quaedam personae possint obstare matri, et casus tulerit, ut non inducerentur, matris ius integrum erit, quod medio tempore appenderit: ueluti si filio intestato mortuo postumus ei filius potuerit nasci nec natus sit aut mortuus editus, uel quod etiam filius qui in hostium potestate erat postliminio non sit reuersus.
When it is in suspense whether certain persons can stand in the way of the mother, and events bring it about that they are not introduced, the right of the mother will be unimpaired, including what has been in suspense in the meantime: for example, if, upon the death of an intestate son, a posthumous son could have been born to him but was not born or was born dead, or because even a son who was under the power of enemies has not returned by postliminium.

Notes

  1. 38.17.10.prA de his — The 'A' in the Latin text likely represents a textual corruption or a manuscript artifact (perhaps for 'ac' or a miscopied letter) and has no syntactical function. The phrase is understood as 'non sit testatus de his...' (has not made a will concerning these things).
  2. 38.17.10.priudicio — 'iudicio' here refers specifically to the 'testamentary judgment' or 'will' of the soldier. The privilege (beneficium) concerning the camp-acquired property (peculium castrense) is granted to the soldier's active exercise of testamentary discretion, rather than making them equivalent to a pater familias in all respects, including intestate succession.
  3. 38.17.10.1quod medio tempore appenderit — A relative clause qualifying 'matris ius integrum erit'. 'appenderit' (from 'appendere', to hang to/accrue) is often read or associated with 'penderit' (to hang in suspense). It indicates that the rights of the mother, which were suspended or accrued during the 'intermediate time' while the existence of other heirs was uncertain, will fully vest in her retrospectively.

Cite this passage

Justinian I, The Digest of Justinian §38.17.10.pr-38.17.10.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.17.10.pr-38.17.10.1

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