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Justinian I · The Digest of Justinian §5.2.15.pr-5.2.15.2

Duty to Parents and Partial Success in Undue Will Claims

Passage 979 of 9271 · Latin

Summary

Papinianus discusses the moral necessity of leaving inheritances to parents in cases of untimely death, the loss of the right to bring a complaint for an heir if the deceased changed his mind after preparing the suit, and the legal status and exceptional partial intestacy of a son who succeeds in his complaint against only one of two co-heirs.

[IDEM libro quarto decimo quaestionum. ] §5.2.15.prNam etsi parentibus non debetur filiorum hereditas propter uotum parentium et naturalem erga filios caritatem: turbato tamen ordine mortalitatis non minus parentibus quam liberis pie relinqui debet.
[THE SAME in his Fourteenth Book of Questions.] For even if the inheritance of children is not owed to parents because of the hope of parents and their natural affection toward children, yet, when the order of mortality is disturbed, it ought to be dutifully left to parents no less than to children.
§5.2.15.1Heredi eius, qui post litem de inofficioso praeparatam mutata uoluntate decessit, non datur de inofficioso querella: non enim sufficit litem instituere, si non in ea perseueret.
The complaint of an inofficious testament is not granted to the heir of one who, after the suit concerning the inofficious testament had been prepared, died having changed his mind; for it is not sufficient to institute a suit if one does not persevere in it.
§5.2.15.2Filius, qui de inofficiosi actione aduersus duos heredes expertus diuersas sententias iudicum tulit et unum uicit, ab altero superatus est, et debitores conuenire et ipse a creditoribus conueniri pro parte potest et corpora uindicare et hereditatem diuidere: uerum enim est familiae erciscundae iudicium competere, quia credimus eum legitimum heredem pro parte esse factum: et ideo pars hereditatis in testamento remansit, nec absurdum uidetur pro parte intestatum uideri.
A son who, having brought an action of an inofficious testament against two heirs, obtained different judgments of the judges, and conquered one but was defeated by the other, can both sue debtors and himself be sued by creditors in proportion to his share, and also claim specific things and divide the inheritance; for it is true that the action for partition of an inheritance lies, because we believe that he has been made a statutory heir in proportion to his share; and therefore a part of the inheritance remained under the testament, nor does it seem absurd for a person to be considered intestate in part.

Notes

  1. §5.2.15.prturbato tamen ordine mortalitatis — An ablative absolute construction meaning "yet, when the natural order of mortality (the child dying before the parent) is disturbed." It indicates that the parent's right (or moral claim) to the child's inheritance arises under the exceptional circumstance of the child predeceasing the parent.
  2. §5.2.15.2familiae erciscundae iudicium competere — An accusative with infinitive clause introduced by the impersonal expression `uerum est` ("it is true that..."), meaning "that the action for the partition of an inheritance (familiae erciscundae iudicium) lies." It refers to the specific legal remedy used among co-heirs to divide an estate.
  3. §5.2.15.2pro parte intestatum uideri — Meaning "to be considered intestate in part." This represents a notable exception to the classical Roman law principle "no one can die partly testate and partly intestate" (nemo pro parte testatus, pro parte intestatus decedere potest), which arises here through the peculiar outcome of the complaint of an inofficious testament (winning against one co-heir but losing against the other).

Cite this passage

Justinian I, The Digest of Justinian §5.2.15.pr-5.2.15.2. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.2.15.pr-5.2.15.2

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