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Justinian I · The Digest of Justinian §38.17.6.pr-38.17.6.1

Children under Power and Revocation of Inheritance Refusal

Passage 6093 of 9271 · Latin

Summary

This passage discusses that under the Senatus Consultum Orphitianum, a child is admitted to the mother's inheritance even if under another's power, and that a child who once refused the inheritance may change their mind and accept it within a year.

[IDEM libro singulari ad senatus consultum Orphitianum. ] §38.17.6.prFilii mater² ex hoc senatus consulto, etiamsi in aliena potestate sit, ad hereditatem admittitur.
[THE SAME in his single book on the Senatus Consultum Orphitianum.] A son of a mother is admitted to the inheritance under this senatus consultum, even if he is under the power of another.
§38.17.6.1Filius, qui se nolle adire hereditatem matris dixit, an potest mutata uoluntate adire, antequam consanguineus uel adgnatus adierit, uidendum propter haec uerba 'si nemo filiorum uolet 'hereditatem suscipere', quia extensiua sunt.
Whether a son, who has declared that he does not wish to enter upon the inheritance of his mother, can, after changing his mind, enter upon it before a consanguinean brother or an agnate has entered, must be considered on account of these words: 'if none of the children wishes to undertake the inheritance', because they are of an extendable nature.
et cum uerba extensiua sint, paenitentia eius usque ad annum admittenda est, cum et ipsa filii bonorum possessio annalis est.
And since the words are extendable, his change of mind must be admitted up to a year, since the possession of goods of the son itself is also for a year.

Notes

  1. 38.17.6.prFilii mater² — The wording in the text indicates a textual corruption. Since the purpose of the Senatus Consultum Orphitianum is to allow children to succeed to their mother's estate, the subject of the singular verbs admittitur and sit must be the 'child' rather than the 'mother'. Therefore, this passage is construed as a corruption of Filius matris (the son of the mother), with 'the son' serving as the subject.
  2. 38.17.6.1an potest ... uidendum — In the indirect question (introduced by an...) dependent on uidendum [est] (it must be considered), the indicative present potest is used instead of the subjunctive. This construction presents the substance of the question while directly raising a practical possibility in juristic debate.

Cite this passage

Justinian I, The Digest of Justinian §38.17.6.pr-38.17.6.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.17.6.pr-38.17.6.1

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