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Justinian I · The Digest of Justinian §38.17.5.pr-38.17.5.2

Priority of Adopted Children and Descendants over Mother

Passage 6092 of 9271 · Latin

Summary

It explains that adopted children and their descendants have priority over the mother in inheritance, and discusses the complex order of priority among surviving family members upon the death of a manumitted grandson, concluding that the rights of the grandfather who manumitted him should be preserved.

[PAULUS libro singulari ad senatus consultum Tertullianum. ] §38.17.5.prAequissimum uisum est omnes filios matri praeferri, etiamsi per adoptionem in familiam relicti essent.
[PAULUS in his single book on the Senatus Consultum Tertullianum.] It was deemed most equitable that all children should be preferred to the mother, even if they had been left in a family through adoption.
§38.17.5.1Sed et nepos ex adoptiuo filio natus ex uerbis senatus consulti matri obstabit.
But also a grandson born of an adopted son will, under the terms of the senatus consultum, bar the mother.
§38.17.5.2Si ex filio nepotem auus manumiserit isque patre et auo et matre superstitibus decesserit, potest quaeri, quis potior esse debeat.
If a grandfather manumitted a grandson born of his son, and that grandson died while his father, grandfather, and mother were still surviving, it can be asked who ought to have priority.
nam si mater excluserit auum manumissorem, qui patri anteponitur, edicto praetoris inducetur pater defuncti, quo admisso desinit senatus consulto locus esse et rursus auus uocabitur.
For if the mother excludes the grandfather who manumitted him (who is preferred to the father), the father of the deceased will be introduced by the praetor’s edict; and if he is admitted, there ceases to be room for the senatus consultum, and the grandfather will be called again.
itaque rectius est auo ius suum conseruare, qui et contra scriptos heredes bonorum possessionem accipere solet.
Therefore, it is more correct to preserve his right for the grandfather, who is also accustomed to receive the possession of goods contrary to the provisions of a will.

Notes

  1. §38.17.5.prrelicti essent — The participle `relictus` (left behind) here refers to children being transferred to and remaining in an adoptive family through the process of adoption.
  2. §38.17.5.1matri obstabit — The intransitive verb `obstare` with the dative `matri` is used here in the sense of "to bar" or "to have priority over" the mother in inheritance.
  3. §38.17.5.2patre et auo et matre superstitibus — An ablative absolute construction formed by the nouns `pater`, `auus`, `mater` and the adjective `superstes` (surviving), indicating the circumstance: "while the father, grandfather, and mother were still surviving."
  4. §38.17.5.2desinit senatus consulto locus esse — The dative `senatus consulto` depends on `locus`. The phrase literally means "there ceases to be room for the senatus consultum," indicating that the decree is no longer applicable.
  5. §38.17.5.2auo ius suum conseruare — An infinitive clause serving as the subject of `rectius est` (it is more correct). The dative `auo` acts as a dative of advantage ("for the grandfather") or implicitly as the logical subject of `conseruare`.

Cite this passage

Justinian I, The Digest of Justinian §38.17.5.pr-38.17.5.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.17.5.pr-38.17.5.2

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