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Justinian I · The Digest of Justinian §40.5.38.pr

Fideicommissary Freedom and Bequests in an Incomplete Will

Passage 6450 of 9271 · Latin

Summary

Describing a case where a man gave freedom and fideicommissa to his foster-daughter in an incomplete testament, in which the emperor decided that the dutiful children ought to respect their father's wish and manumit her, and therefore the fideicommissa must also be fulfilled.

[PAULUS libro tertio decretorum. ] §40.5.38.prIn testamento, quod perfectum non erat, alumnae suae libertatem et fideicommissa dedit.
[PAULUS in the third book of decreta.] In a testament which was not completed, a man gave freedom and fideicommissa to his foster-daughter.
cum omnia ut ab intestato egissent, quaesiit imperator, an ut ex causa fideicommissi manumissa fuisset: et interlocutus est, etiamsi nihil ab intestato pater petisset, pios tamen filios debuisse manumittere eam, quam pater dilexisset.
When the heirs had conducted all matters as if on intestacy, the emperor inquired whether she had been manumitted by virtue of the fideicommissum; and he gave an interlocutory decision that, even if the father had requested nothing from the intestate estate, yet dutiful children ought to have manumitted her whom their father had loved.
pronuntiauit igitur recte eam manumissam et ideo fideicommissa etiam ei praestanda.
He therefore pronounced that she had been rightly manumitted, and that consequently the fideicommissa also must be paid to her.

Notes

  1. §40.5.38.prperfectum non erat — "perfectum non erat" (was not completed) means that the testament did not meet the full legal requirements for validity, which is why the heirs proceeded as if on intestacy (ab intestato).
  2. §40.5.38.pran ut ex causa fideicommissi manumissa fuisset — The conjunction `an` introduces an indirect question, in which `ut` functions in the sense of "as" or "in the capacity of," questioning whether she should be considered as having been manumitted on the ground of the fideicommissum in the incomplete testament.
  3. §40.5.38.prpios tamen filios debuisse — The adjective `pios` (dutiful/filial) is the subject accusative of the infinitive `debuisse` in the indirect speech. It indicates that respecting the deceased father's wish (`dilexisset`) was a moral duty (`pietas`) of the children, regardless of the testament's technical invalidity.

Cite this passage

Justinian I, The Digest of Justinian §40.5.38.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:40.5.38.pr

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