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Justinian I · The Digest of Justinian §5.2.13.pr

Trust-Bequests Charged on Intestate Heirs upon Broken Will

Passage 977 of 9271 · Latin

Summary

A case where Titia provided in her testament that her trust-bequests should be performed by her intestate heirs. When a sister successfully challenges the testament in the centumviral court, Scaevola and Paulus present conflicting views on whether the trust-bequests remain due.

[SCAEUOLA libro tertio responsorum. ] §5.2.13.prTitia filiam heredem instituit, filio legatum dedit: eodem testamento ita cauit: 'Ea omnia quae supra dari fieri iussi, ea dari fieri uolo ab omni herede bonorumue possessore qui mihi erit etiam iure intestato: item quae dari iussero, ea uti dentur fiantque, fidei eius committo. ' quaesitum est, si soror centumuirali iudicio optinuerit, an fideicommissa ex capite supra scripto debeantur.
[SCAEVOLA in his Third Book of Opinions.] Titia instituted her daughter as heir and gave a legacy to her son; in the same testament she provided as follows: 'All those things which I have ordered above to be given and done, I wish them to be given and done by every heir or possessor of goods who shall succeed me even by the law of intestacy; likewise, as to those things which I shall order to be given, I commit to his trust that they be given and done.' The question was asked, if the sister should prevail in the centumviral court, whether the trust-bequests (fideicommissa) under the above-written clause are due.
respondi: si hoc quaeratur, an iure eorum, quos quis sibi ab intestato heredes bonorumue possessores successuros credat, fidei committere possit, respondi posse.
I replied: if the question is whether one can commit a trust to the charge (iure) of those whom one believes will succeed him as heirs or possessors of goods on intestacy, I replied that one can.
PAULUS notat: probat autem nec fideicommissa ab intestato data deberi, quasi a demente.
PAULUS notes: but it [the judgment] proves that trust-bequests given on the basis of intestacy are not due either, as if [made] by an insane person.

Notes

  1. 5.2.13.priure eorum — iure is in the ablative case, interpreted here as "by the status of" or "under the legal obligation of". Scaevola reasons that, as a matter of law, a testator can impose a trust-bequest on those whom they expect to succeed them on intestacy, even if the testament is later invalidated.
  2. 5.2.13.prquasi a demente — "as if [made] by an insane person." The reason why a testament is declared invalid in the centumviral court (under the complaint of an inofficious testament) is based on the legal fiction that the testator was insane when making it. Paulus notes that since the entire testament is voided due to this fiction of insanity, the trust-bequests directed to intestate heirs within that testament must also fail, thus dissenting from Scaevola's response.

Cite this passage

Justinian I, The Digest of Justinian §5.2.13.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.2.13.pr

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