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Justinian I · The Digest of Justinian §5.2.17.pr-5.2.17.1

Estate Acquisition upon Waived Suit and Default Judgments

Passage 981 of 9271 · Latin

Summary

It is explained that an heir who waives litigation does not reduce the share of other active litigants, allowing the successful one to obtain the whole estate, and that while a testament declared inofficious negates the deceased's capacity, a default judgment does not have this effect.

[PAULUS libro secundo quaestionum. ] §5.2.17.prQui repudiantis animo non uenit ad accusationem inofficiosi testamenti, partem non facit his qui eandem querellam mouere uolunt.
[PAULUS in his Second Book of Questions.] A person who, with the intention of waiving, does not join the complaint of an inofficious testament does not create a share for those who wish to bring the same complaint.
unde si de inofficioso testamento patris alter ex liberis exheredatis ageret, quia rescisso testamento alter quoque ad successionem ab intestato uocatur, et ideo uniuersam hereditatem non recte uindicasset: hic si optinuerit, uteretur rei iudicatae auctoritate, quasi centumuiri hunc solum filium in rebus humanis esse nunc, cum facerent intestatum, crediderint.
Hence, if one of the disinherited children should bring an action concerning the inofficious testament of their father, because, if the testament is rescinded, the other child is also called to the intestate succession, he would not therefore have rightly claimed the entire inheritance. However, if this person should succeed, he would enjoy the authority of res judicata, as if the centumviri, when they declared the deceased intestate, believed that this son alone was now among the living.
§5.2.17.1Cum contra testamentum ut inofficiosum iudicatur, testamenti factionem habuisse defunctus non creditur.
When judgment is rendered against a testament as being inofficious, the deceased is not believed to have possessed the capacity to make a testament.
non idem probandum est, si herede non respondente secundum praesentem iudicatum sit: hoc enim casu non creditur ius ex sententia iudicis fieri: et ideo libertates competunt et legata petuntur.
The same is not to be approved if, because the heir did not answer, judgment was rendered in favor of the party present; for in this case it is not believed that a right is created by the decision of the judge, and therefore manumissions are valid and legacies may be claimed.

Notes

  1. §5.2.17.prpartem non facit — "does not make a share", meaning that a person who does not join the litigation is not counted in the division, and therefore does not diminish the share of those who do bring the action.
  2. §5.2.17.prquasi ... crediderint — A clause of comparison and concession introduced by quasi with the subjunctive perfect crediderint ("as if they believed"). It describes a hypothetical situation in the past relative to the main verb uteretur in the subjunctive imperfect.
  3. §5.2.17.1herede non respondente — An ablative absolute construction using the present participle, indicating that the instituted heir (the defendant) did not answer in court (i.e., made a default).
  4. §5.2.17.1secundum praesentem — The preposition secundum (in favor of) combined with the accusative adjective used substantively praesentem (the party present, i.e., the plaintiff), meaning that judgment was rendered in favor of the plaintiff who appeared due to the defendant's default.

Cite this passage

Justinian I, The Digest of Justinian §5.2.17.pr-5.2.17.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:5.2.17.pr-5.2.17.1

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