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Justinian I · The Digest of Justinian §38.7.4.pr

Succession of the Uncle Upon Renunciation and Relevant Time

Passage 6028 of 9271 · Latin

Summary

The jurist determines that if one of two brothers dies leaving a will and the other dies intestate while the appointed heir is deliberating, and that heir later declines the inheritance, the uncle obtains the statutory inheritance, with the estate's possession retroactively determined.

[IULIANUS libro uicensimo septimo digestorum. ] §38.7.4.prSi ex duobus fratribus alter decesserit testamento iure facto, dein deliberante herede alter quoque intestato decesserit et scriptus heres omiserit hereditatem, patruus legitimam hereditatem habebit: nam haec bonorum possessio tum quem heredem esse oportet ad id tempus refertur, quo primum ab intestato bonorum possessio peti potuisset.
[JULIANUS in the twenty-seventh book of the Digests.] If one of two brothers should die, having made a will in accordance with the law, and then, while the appointed heir is deliberating, the other brother should also die intestate, and the appointed heir should decline the inheritance, the paternal uncle will have the statutory inheritance. For this possession of the estate which is granted to "him who ought to be the heir at that time" is referred back to that time at which a possession of the estate on intestacy could first have been applied for.

Notes

  1. §38.7.4.prdeliberante herede — An ablative absolute construction consisting of the present participle deliberans and the noun heres, indicating the legal period of deliberation (tempus ad deliberandum) during which the appointed heir decides whether to accept or decline the inheritance.
  2. §38.7.4.prtum quem heredem esse oportet — A noun phrase (literally, "him whom it is necessary at that time to be the heir") acting in apposition to or specifying 'haec bonorum possessio'. It functions as a technical legal formula referring to the person who qualifies as heir at the relevant determined time.
  3. §38.7.4.prad id tempus refertur, quo... — The verb referre with the preposition ad means 'to refer back to' or 'to date back to'. It signifies that the determination of who qualifies for the possession of the estate is retroactively judged as of the moment when the petition could first have been made (i.e., at the opening of the succession on intestacy).

Cite this passage

Justinian I, The Digest of Justinian §38.7.4.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:38.7.4.pr

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